Appendix — Buss v. Stevens (No. 07-1016)

United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

August 28, 2007

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Nos. 05-1442

CHRISTOPHER M. STEVENS,

Appeal from the United States District Court for

the Northern District of Indiana, Petitioner-

Appellant, Hammond Division.

No...03 C5

DANIEL R. MCBRIDE,

Superintendent, Allen Sharp, Judge.

Respondent-Appellee,

2A

ORDER

Respondent-Appellee filed a petition for rehearing and

rehearing en banc on July 2, 2007, and Petitioner-

Appellant filed a petition for rehearing and rehearing en

banc on July 27, 2007.

No judge in regular active service has requested a vote

on the petitions for rehearing en banc, and all members of

the onginal panel have voted to DENY rehearing.

Accordingly,

IT IS ORDERED that the petitions for rehearing and

rehearing en banc are DENIED.

IT IS FURTHER ORDERED that the opinion

released on June 18, 2007, is amended as follows:

Section III of the original opinion is withdrawn, and is -

replaced with the following new section:

Appeal no. 05-1442 Page 2

ITI

For the foregoing reasons, the judgment of the district

court is AFFIRMED to the extent that it denies habeas

corpus relief with respect to Stevens’s conviction, and it is

otherwise VACATED. The case is REMANDED with

instructions to issue a wnt of habeas corpus that vacates

the current sentence of capital punishment. The State of

Indiana is free to conduct a new death penalty hearing,

providing that it files appropriate documents seeking such

relief within 120 days of the mandate from this court.

3A

United States Court of Appeals

Hor the Sebenth Circuit

No. 05-1442

CHRISTOPHER M. STEVENS, Petitioner-Appellant,

Vv.

DANIEL MCBRIDE,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of

Indiana, Hammond Division. No. 03-CV-005—Allen Sharp, Judge.

ARGUED FEBRUARY 7, 2006—DECIDED JUNE 18, 2007

Before Ripple, MANION, and Woop, Circuit Judges.

WOOD, Circuit Judge. Christopher Stevens, an

emotionally disturbed young man who had been abused

and raped as a child, was sentenced to death in Indiana

state court for the molestation and brutal murder of 10-

year-old Zachary Snider. At Stevens’s trial, the only

evidence presented by the defense concerning his mental

state at the time of the killing was the testimony of a

psychologist who believes that mental illness is a myth.

After the Indiana courts rejected Stevens’s direct appeal

and post-conviction review petition, he brought this habeas

corpus petition under 28 U.S.C. § 2254, claiming

principally that his attorneys’ investigation and

presentation of expert psychological testimony at his trial

amounted to ineffective assistance of counsel and deprived

4A

him of his only opportunity to avoid conviction and a

death sentence. We conclude that the defense attorneys

provided in effective assistance at the penalty phase of

the trial and grant Stevens’s petition insofar as it relates

to his sentence.

I

A

The underlying facts of this case are recounted in

detail in the Indiana Supreme Court’s decision affirming

Stevens’s conviction and sentence. See Stevens v. Indiana, ©

691 N.E.2d 412 (Ind. 1997). Those facts are entitled to a

presumption of correctness, see 28 U.S.C. § 2254(e)(1), and

they are in any event uncontested at this point. We repeat

here only what is relevant to Stevens’s current claims.

In February 1993, Stevens, who was 20 years old at

the time, was convicted in Indiana state court of child

molestation. After serving several months of his sentence,

he was released on probation in May 1993. On the night

before his release, Stevens had a conversation with a

fellow inmate, Tracy Eastin, in which Eastin predicted that

Stevens would be back in jail for the same crime again

within two months. Stevens allegedly replied, “No, I

won't. Next time I'll kill him.”

Upon his release, Stevens went to live with his father

in Cloverdale, Indiana. He soon befriended Snider, a 10-

year-old who lived in the same subdivision as Stevens’s

father. On July 15, 1993, Snider went to Stevens’s home in

the late afternoon, where Stevens proceeded to molest

him. Afterwards, Snider threatened to tell his parents

about the assault; at this point, Stevens claims that he

became scared and “clicked.”” He attempted to kill Snider

SA

by smothering him with a pillow and then strangling him

with a cord. After those methods proved unsuccessful,

Stevens eventually managed to kill Snider by suffocating

him with a plastic bag. Stevens then placed Snider’s body

and Snider’s bicycle into the back of his car, drove out into

the countryside, and threw the body and bike over a

bridge. Later, he returned to the site to retrieve a plastic

bag that he feared, if found, might assist the police in

identifying him as Snider’s killer.

When Snider did not return home during the evening

of July 15, his parents began to search the neighborhood.

They came across Stevens in front of his house. Lying to

them, Stevens denied having seen Snider all day. On July

17, the police picked up Stevens for questioning,

confronting him with the fact that a witness had seen

Snider’s bicycle parked in front of his home on the day of

the murder. Stevens admitted to police that Snider had

visited him briefly, but he denied having anything to do

with his disappearance. Two days later, Stevens confessed

to his brother Mark Stevens that he had killed Snider,

explaining in detail what had occurred and directing his

brother to the bridge where the body was hidden. Mark

Stevens went to the police, who later arrested

Christopher Stevens.

B

After Stevens was charged with Snider’s murder the

State announced its intention to seek the death penalty.

The Putnam County Superior Court appointed two

lawyers for Stevens: Jeffrey Baldwin as lead defense

counsel and Robert Clutter as second counsel. Soon

thereafter, the case was transferred to the Tippecanoe

County Superior Court. Baldwin retained Carol Knoy as a

defense mitigation specialist. From conversations with

6A

Stevens, it quickly became apparent to the defense team

that a mental health examination would be an important

component of trial preparation. Stevens told his lawyers

that he had been physically, mentally, and emotionally

abused as a child, and had been raped by a stranger when

he was 10 years oid. Medical records from a ‘psychiatric

facility where Stevens was briefly a patient reported that he

had attempted suicide. Doctors there had diagnosed him

with major depression and possible schizophrenia. Stevens

also wrote a letter to Knoy in which he stated that when he

killed Snider he “put himself in Zachary'’s place, and he

was doing to Zachary what he wished the man who had

raped him would have done to him.”

Upon. Knoy’s recommendation, defense counsel

retained as a mental health consultant clinical psychologist

Dr. Lawrence Lennon, who at the time was director of a

child and adolescent psychiatric center at an Indianapolis

hospital. Upon meeting with Dr. Lennon for the first time,

defense counsel instructed him to evaluate Stevens but not

to write a report on his findings. Despite this explicit

direction, Dr. Lennon wrote a report and sent it to

Stevens's attorneys. The report included numerous

statements that were extremely detrimental to Stevens’s

case. Because this report is so central to Stevens’s claims,

we reproduce excerpts of it here:

Mr. Stevens revealed no evidence of any

hallucinations or delusions. . . . There is no

reason to believe that he has ever been out of

touch with reality except perhaps when he has

been under the influence of drugs. . . .

He said he has molested approximately 25-30

children (mostly boys) and has shot and killed

one boy out west (later he recanted this story). .

7A

He rarely accepts responsibility for his actions

and tries to blame others for all the problems he

has encountered. .. .

The murder of Zachary appears to be directly

related to his fear of having to return to prison

after Zachary revealed he would report Mr.

Stevens’ sexual assault. Mr. Stevens did not

seem to reveal sincere sorrow for killing

Zachary and is much more preoccupied with

saving his own life.

Sexually, Mr. Stevens seems well versed in

pedophiha and readily accepts this diagnosis. . . .

Mr. Stevens is in need of intensive counseling

although due to his manipulative behavior he is

not now a good candidate for psychotherapy. . . .

Mr. Stevens is, at this time, a serious danger to

society and there is every reason to believe he

would continue to molest children, especially

boys, if given another opportunity. Given his

present mental state, one could not rule out

another violent assault on a young victim if Mr.

Stevens again felt it was necessary.

Upon receipt of the report, Stevens’s lawyers

immediately contacted Dr. Lennon to question why he

had disobeyed their instructions. Stevens’s attorney Robert

Clutter testified that Dr. Lennon, echoing Marlene

Dietrich’s portrayal of the character Christine Helm Vole

in the 1957 film version of Witness for the Prosecution,

responded: “Don’t worry about it. I’m sandbagging the

State... . I’m trying to make them think that I'm going to

be a good witness for them, but I’m going to take-—when I

take the stand, I’m going to be able to turn this all

around on them.”

8A

Around the same time, Stevens’s lawyers also learned

that Dr. Lennon subscribed to an unusual psychological

theory known as the “myth of mental illness.” Stevens’s

lawyers believed that Dr. Lennon’s belief in this theory

placed him in the one percent minority of psychologists

who believe that mental diseases do not exist. They

concluded that he was a “quack.” Stevens’s lawyers also

learned about Dr. Lennon’s favored therapeutic technique,

“trust and bonding therapy,” which the lawyers (and later

Dr. Lennon himself) described as “putting 18-year-olds on

his lap and sticking a bottle in their mouth.” Despite their

serious and well-founded doubts about Dr. Lennon’s

fitness as a defense expert, Stevens’s counsel did not seek

an alternative. In addition, prior to trial the lawyers sent a

copy of Dr. Lennon’s report to the prosecution.

Neither Dr. Lennon nor any other mental health

professional testified during the guilt phase at the trial.

Instead, Stevens’s counsel tried to convince the jury that

Stevens was guilty of voluntary manslaughter rather than

intentional homicide because he acted in a state of sudden

heat provoked by Snider’s threat to disclose Stevens’s

molestation of him. This strategy was unsuccessful, as the

trial court refused to give a proposed jury instruction on

voluntary manslaughter. The jury returned a guilty verdict.

At the penalty phase of the trial, defense counsel

presented testimony from Stevens himself, as well as from

numerous members of Stevens’s family. As their final

witness, Stevens’s lawyers called Dr. Lennon. Dr. Lennon

began his testimony by describing at length his preferred

form of therapy for troubled children, stating that he

typically would forcibly hold a young person down in his

lap for “a fun time where the child tries to get away” until

the child is exhausted and then, “we’ll talk about the child,

the little baby inside this boy that was never nourished,

never loved . . . and in some cases we'll actually give a

9A

bottle. The mother will give a bottle to the 17-year-old and

16-year-old... .” Dr. Lennon also described his diagnostic

technique of looking at photographs of troubled children at

younger ages where “[wle see . . . a beautiful child that it

makes you wonder why, what happened . . .and then we

look at where the person is today, and we try to figure out

what's going on.”’

Eventually turning to the subject of Stevens, after

more than twenty pages of testimony on his theories of

child development and his “trust and bonding” therapy,

Dr. Lennon testified about the “terrible childhood” and

some of the abuse Stevens had experienced. Notably, Dr.

Lennon did not provide any evaluation of Stevens’s

current mental health, except to say that Stevens “shows

traits of . . . {are active] attachment disorder,” which,

according to Dr. Lennon, means that Stevens is “going to

live . . . by using people.” Dr. Lennon also stated that’

Stevens is “emotionally like a twelve-year-old” just after

describing him as “a very pathetic kid.” Dr. Lennon said

nothing to connect Stevens’s difficult childhood to his

mental state at the time of the murder.

The prosecution’s cross-examination of Dr. Lennon

closely tracked Dr. Lennon’s written evaluation of

Stevens. Prosecutors asked Dr. Lennon to confirm his

statement that the murder of Snider was directly related to

Stevens’s fear of having to return to prison. Dr. Lennon

volunteered that Stevens had antisocial qualities and

sociopathic traits. After walking Dr. Lennon through the

report, the prosecutor asked Dr. Lennon whether Stevens

had been sexually aroused by killing Snider and whether

he had masturbated on Snider’s body. Dr. Lennon

responded that Stevens had admitted that he had done so.

Dr. Lennon had never disclosed this devastating fact to

defense counsel.

10A

The jury unanimously recommended a_ death

sentence. After Stevens’s attorneys called Dr. Lennon to

testify a second time at the sentencing hearing, during

which Dr. Lennon described Stevens as presenting “a great

risk to society,” the trial court accepted the jury’s

recommendation of death. In so doing, the court stated for

the record that it found that the mitigation evidence

presented by Stevens was “far outweighed” by the

aggravation factors provided by the State. In summary the

court stated:

[T]he Court finds this murder was calculated. It

was motivated by self-preservation, coolly

performed with deliberation, and coupled with

the defendant’s sexual gratification. The

defendant placed the possibility of his arrest for

child molesting above the life of a ten year old

boy. He stated that if placed in this position he

would kill in order to avoid returning to jail.

~ That is exactly what he did. He clearly acted in a

cold-blooded manner.

The Indiana Supreme Court affirmed Stevens’s

conviction and sentence on direct appeal. After obtaining

new counsel, Stevens’ filed a state petition for post-

conviction relief. After holding an evidentiary hearing, the

trial court denied this petition; the Indiana Supreme Court

later affirmed this denial. Finally, Stevens filed this

petition for habeas corpus in district court. The district

court denied Stevens’s claims, leading to this appeal.

II

Our review of Stevens’s petition is governed by the

Antiterronsm and Effective Death Penalty Act of 1996

(AEDPAY¥, 28 U.S.C. § 2254, which permits a federal court

LIA

to issue a writ of habeas corpus only if the state court

reached a decision on the merits of a claim, and that

decision was either “contrary to, or involved an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States,” § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding,” § 2254(d)(2). Since

Stevens’s principal argument involves a claim of ineffective

assistance of counsel, it is governed by the familiar

standard of Strickland v. Washington, 466 U.S. 668 (1984),

under which a defendant must show both that his lawyers’

performance was deficient and that this deficient

performance prejudiced his defense.

Although there is significant overlap between

Stevens’s claims that he received ineffective assistance of

counsel relating to the investigation and presentation of

expert psychological evidence at the guilt phase of the tral

and at the penalty phase, for clarity we consider each

argument in turn. We then briefly address two additional

arguments that Stevens raises in his petition.

A. Guilt Phase

Throughout his state and federal post-conviction

proceedings, Stevens has claimed that his lawyers were

ineffective for not adequately investigating his mental state

and, as a result, failing to pursue an insanity defense

during the guilt phase of the trial and instead relying on a

doomed voluntary manslaughter theory. In its decision

denying post-conviction relief, the Indiana Supreme Court

rejected this argument, concluding that defense counsels’

decision not to pursue such a defense was a strategic one

based on adequate investigation. In any case, the court

held, Stevens was not prejudiced by his lawyers’

12A

performance because Stevens’s actions during and after the

killing constituted such strong evidence that Stevens was

aware of the wrongfulness of his conduct that no

reasonable jury could conclude otherwise.

Our review of Stevens’s counsels’ performance is

“highly deferential”; Stevens is required to “overcome the

presumption that, under the circumstances, the challenged

action might be considered -sound trial strategy.”

Strickland, 466 U.S. at 689 (quotation marks omitted). The

choice not to investigate a particular defense does not

constitute deficient performance “if a lawyer has made a

reasonable decision that makes particular investigations

unnecessary.” Adams v. Bertrand, 453 F.3d 428, 436 (7th

Cir. 2006) (quotation marks omitted).

In an attempt to overcome the presumption of sound

trial strategy, Stevens relies on his lawyers’ frank

admissions at the state post-conviction hearing that they

were aware from the beginning of their representation of

Stevens that a comprehensive mental health evaluation

would be a crucial prerequisite for determining trial

strategy, yet after Dr. Lennon failed to provide them with

such an evaluation they neglected to consult an aiternative

mental health expert. Stevens also emphasizes that his

lawyers did not offer any rationale for their decision not to

seek an additional expert. To the contrary, they explicitly

disclaimed any strategic basis for their actions.

In contrast, the State, echoing the Indiana Supreme

Court, contends that defense counsels’ investigation of

Stevens’s mental state was adequate because it was

reasonable for them to rely on Dr. Lennon, whom the

State describes as a well-qualified and experienced mental

health professional. The State further argues that it was a

reasonable strategic choice for counsel to choose a

voluntary manslaughter defense over a mental illness

13A

defense, since, it claims, choosing the latter path “would

have opened the door to the admission of incriminating

evidence not otherwise presented at the guilt phase,”

namely, Eastin’s testimony regarding Stevens’s

jailhouse statement.

The general qualifications of an expert witness do not

guarantee that the witness will provide proficient

assistance in any given instance. For example, even the

most brilliant of witnesses might fail to address the import-

ant question at issue or might simply reiterate propositions

so well-known that they are proper subjects for judicial

notice. Experience in the federal courts illustrates this

point. In an antitrust case, for example, this court upheld a

district court’s exclusion of the expert testimony of a Nobel

Prize-winning economist on the ground that, despite his.

impeccable qualifications, his testimony “mainly

concerned a matter not in issue” (probably be-cause

counsel never asked him the right questions). In re Brand

Name Prescription Drugs Antitrust Litigation, 186 F.3d 781,

786 (7th Cir. 1999). There, the relevant rule was Federal

Rule of Evidence 702, which requires not only that an

expert witness be “qualified as an expert by knowledge,

skill, experience, training, or education,” but also that the

expert’s testimony be “the product of reliable principles

and methods.”

Indiana, naturally, is under no obligation to follow

federal procedural rules, including the rules of evidence. At

the time of Stevens’s tral, however, Indiana had a rule

very much like the present Fep. R. Evip. 702, or like IND.

R. Evip. 702 (effective Jan. 1, 1994): “[G]iven a subject

matter appropriate for expert testimony, the opinion must

be preceded by a foundation of evidence establishing the

witness’s credentials as an expert and the reliability of any

scientific methods utilized by the witness to reach the

opinion.” See Noblesville Casting Div. of TRW, Inc. v. Prince,

14A

438 N.E.2d 722, 727 (Ind. 1982); see also Martin v. Roberts,

464 N.E.2d 896, 899 (Ind. 1984) (holding that a potential

expert witness “had to show to the tnal judge his

knowledge and experience in the field to qualify as an

expert”). The problem here related first to the methods that

Dr. Lennon used and his idiosyncratic view of mental

disorders, and even more importantly, to the fact that Dr.

Lennon’s views favored the prosecution. Stevens’s lawyers

were aware that Dr. Lennon was part of a tiny minority of

mental health professionals. (It is odd, given his views,

that Dr. Lennon had worked at a psychiatric hospital. As

the website of the American Psychiatry Association

illustrates, psychiatrists devote their lives to the study and

treatment of mentai disorders. See

http: / /www.psych.org/about_apa/. They, and the

psychologists who frequently work with them, would

undoubtedly take issue with the idea that they are tackling

a “myth.”)

In light of the stakes in the case and the evidence the

defense had to confront, it would not have been reasonable

for defense counsel to rely on Dr. Lennon’s evaluation of

. Stevens based only on his credentials.

Putting that question to one side for now, we are also

troubled by the State’s effort to characterize the defense

lawyers’ reliance on a voluntary manslaughter defense as a

reasonable strategic choice. As the Indiana Supreme Court -

recognized in roundly rejecting Stevens’s argument on

direct appeal that the trial court should have given the

voluntary manslaughter instruction, “[n]Jothing in these

facts” indicates that Stevens acted in “sudden heat” as

defined by Indiana law, since “words alone cannot

constitute sufficient provocation to give rise to a finding of

sudden heat warranting an instruction on voluntary

manslaughter.” Stevens, 691 N.E.2d at 426-27 (quoting

Matheny v. Indiana, 583 N.E.2d 1202, 1205 (Ind. 1992)).

ISA

Nor ts the State’s assertion that a mental illness defense

would have opened the door to Eastin’s testimony

particularly telling. As Stevens correctly points out, the

same door would have been opened if counsel had

managed to obtatn a voluntary manslaughter instruction,

since both defenses involve the element of intent.

In light of Stevens’s lawyers’ admissions and the

overall weakness of the defense they presented at trial, we

are inclined to believe that their performance was

ineffective. Before attempting to resolve that issue

. definitively, however, we look at the prejudice branch of

the Strickland test. We do so because the Supreme Court

has explicitly noted that both deficient performance and

prejudice must be shown in order to prove constitutionally

ineffective assistance of counsel. If either element is

missing, the petitioner cannot prevail. See Strickland, 466

U.S. at 697. We therefore turn to the question whether

Stevens was prejudiced by his counsels’ performance at the

guilt phase of his trial.

In Indiana,“[{a] person is not responsible for having

engaged in prohibited conduct if, as a result of mental

disease or defect, he was unable to appreciate the

wrongfulness of the conduct at the time of the offense.”

Ind. Code § 35-41-3-6. This is a difficult standard to meet;

the defendant carries the burden of proof and the Indiana

Supreme Court has made clear that it will reverse a trial

court’s denial of an insanity claim “only when the

evidence is without conflict and leads only to the

conclusion that the defendant was insane when the crime

was committed.” Thompson v. Indiana, 804 N.E.2d 1146,

1149 (Ind. 2004).

To show that an insanity defense was possible, Stevens

relies heavily on several mental health experts who

testified at the post-conviction hearing that Stevens was

16A ‘

severely mentally ill and that his mental illness played a

determining role in the murder. After conducting a

comprehensive psychological evaluation of Stevens, Dr.

Philip Coons, Professor of Psychology at the Indiana

School of Medicine, diagnosed him as having a “very

severe dissociative disorder,” opining that “at the time of

the murder, he was not only dissociating, but the identity

between he and [Snider] got mixed up. . . . [H]e’s basically

killing Zach because it’s what he would have wanted in

that molestation at age 10, to have been killed by his

abuser.” While Dr. Coons acknowledged that Stevens

“obviously knew right from wrong” after the killing,

“because he engaged in all kinds of behaviors to cover up

what he had done,” Coons emphasized that Stevens’s

ability to appreciate the wrongfulness of his conduct at the

time of the murder was “impaired.” Dr. Robert Kaplan, a

clinical psychologist, agreed that it was “very clear” that

Stevens suffers from “a dissociative disorder,” explaining

that a family history of physical and sexual abuse

corroborated such a diagnosis, as did a review of Stevens’s

behavior during his videotaped confession. Dr. Kaplan

described Stevens’s childhood as “a recipe for developing

someone with a dissociative disorder.” Dr. Kaplan, like

Dr. Coons, testified that it was his opinion that “[t]he part

of [Stevens] that’s able to appreciate the wrongfulness of

his conduct was disengaged when he was dissociating,”

adding that it was clear that Stevens was under extreme

emotional distress and “was actively dissociating at the

time that the murder was occurring.”

To prove prejudice it is not enough for Stevens simply

to show that a mental illness line of defense was available.

Strickland requires him to demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.”

466 U:S. at 694. “A reasonable probability is a probability

17A

sufficient to undermine confidence in the outcome.” Jd.

And, of course, we conduct this analysis through the lens

of AEDPA’s unreasonableness standard, a standard that

“allows the state court’s conclusion to stand if it is one of

several equally plausible outcomes.” Hall v. Washington,

106 F.3d 742, 749 (7th Cir. 1997).

Considering the evidence in the record of Stevens’s

extended efforts to kill Snider and later to cover up the

murder, the Indiana Supreme Court’s conclusion that no

jury could conclude that Stevens did not appreciate the

wrongfulness of his conduct at the time of the murder was

not implausible. Although we think that there is a

possibility that a jury presented with the expert testimony

of Dr. Coons and Dr. Kaplan might have concluded that

‘Stevens was legally insane at the time of the killing based

on a dissociation theory, this possibility does not render

the Indiana Supreme Court’s contrary conclusion

unreasonable. See Hardaway v. Young, 302 F.3d 757, 762

(7th Cir. 2002) {AEDPA’s unreasonableness standard

“means something like lying well outside the boundaries of

permissible differences of opinion”). We_ therefore

conclude that the Indiana Supreme Court did not

unreasonably apply Strickland in determining that Stevens

was not prejudiced by his counsels’ failure adequately to

investigate and pursue an insanity defense during the guilt

phase of his trial.

One final comment on Stevens’s guilt phase claim: in

his reply brief, Stevens argues that, in addition to an

insanity plea, his tral lawyers should have pursued a

defense of guilty but mentally ill (GBMI). See Ind. Code §

35-36-2-5. Such a defense is available in cases in which a

defendant “was mentally ill but able to distinguish nght

from wrong at the time of the offense.” Weeks v. Indiana,

697 N.E.2d 28, 29 (Ind. 1998). Although a jury finding of

GBMI “does not guarantee a defendant that the death

18A

penalty will not be imposed .. . as a practical matter,

defendants found to be guilty but mentally ill of death-

penalty-eligible murders normally receive a term of years

or life imprisonment.” Prowell v. Indiana, 741 N.E.2d 704,

717 (ind. 2001) (internal citation omitted). For this reason,

the Indiana Supreme Court has held that a defendant

claiming ineffective assistance of counsel may prove

prejudice by showing that but for his counsel’s deficient

performance “a trial would have produced a result of .. .

guilty but mentally ill.” Zd. at 717.

Merits aside, we find it inappropriate to consider this

argument because Stevens never argued to the Indiana

courts that this was one way in which he intended to prove

his ineffective assistance of counsel claim. Section

2254(b)(1)(A)’s exhaustion provision “requires the

petitioner to assert his federal claim through one complete

round of state-court review, either on direct appeal of his

conviction or in post-conviction proceedings.” Lewis v.

Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). Adequate

presentation of a claim requires a petitioner to “present

both the operative facts and the legal principles that

control each claim to the state judiciary.” Rittenhouse v.

Battles, 263 F.3d 689, 695 (7th Cir. 2001). Here, although

Stevens presented his ineffectiveness claim to the state

courts, he never presented as a supporting argument the

lawyers’ failure to raise the GBMI defense at trial. (It may

be worth noting here that although we assess counsel’s

performance as a whole for purposes of granting

certificates of appeal ability under 28 U.S.C. § 2253(c)(2),

and thus a certificate identifying ineffective assistance of

counsel brings up all of counsel’s actions, see Peoples v.

United States, 403 F.3d 844, 848 (7th Cir. 2005) (“[I]t is the

overall deficient performance [by a defendant’s attorney],

rather than a specific failing, that constitutes the ground of

relief.”), the purposes behind the rules of procedural

19A

default requires a party to present to the state court both

the facts and the law on which he relies. Thus, the failure

to alert the state court to a complaint about one aspect of

counsel’s assistance will lead to a procedural default.)

Instead, throughout the post-conviction proceedings,

Stevens couched his mental illness defense theory either in

general terms (contending in his petition for post-

conviction relief that his counsels’ “unreasonabl[e] fail[ure]

to investigate, develop, prepare, and present available

evidence, including but not limited to evidence of

diagnosable mental and emotional disabilities, [ ] would

have given rise to a defense to the charge”) or in terms

specific to an insanity defense (arguing in his proposed

conclusions of law that Dr. Coons’s test nony, for

example, supported a finding that Stevens was unable to

“appreciate the wrongfulness of his conduct at the time of

the killing”). Neither argument sufficiently alerted the state

court to the fact that Stevens intended to prove

ineffectiveness through counsel’s failure to present the

_ GBMI claim, and therefore Stevens may not do so here.

B. Sentencing Phase

In seeking relief from his capital sentence, Stevens

repeats many of the same arguments regarding the

inadequacy of defense counsels’ handling of expert

psychological testimony that he made for the guilt phase.

For sentencing purposes, he stresses counsels’ failure to

develop mitigation evidence related to his mental state and

their ill-fated decision to caili Dr. Lennon not once, but

twice, as a defense witness. The Indiana Supreme Court

rejected the first aspect of this claim for the same reason it

rejected Stevens’s guilt phase ineffectiveness claim: it

concluded that defense counsel had adequately

investigated Stevens’s mental health through Dr. Lennon

20A

and then made a strategic decision not to present

mitigation evidence related to Stevens’s mental state. The

court did not, however, have anything to say about

Stevens's lawyers’ decision to call Dr. Lennon as a defense

witness for sentencing purposes, other than to

acknowledge Stevens’s argument that Dr. Lennon “was a —

fatal [sic] witness for the defense.”

The Indiana death penalty statute requires the State to

prove beyond a reasonable doubt the existence of at least

one enumerated aggravating circumstance. Ind. Code § 35-

50-2-9(b)(1). In Stevens’s case, the State focused on three

aggravating circumstances: that Stevens committed the

murder while committing the crime of child molestation,

that Stevens was on probation at the time of the murder,

and that the victim was under the age of 12. The statute

allows a defendant to provide evidence about both the

aggravating circumstances alleged by the prosecution and

enumerated mitigating circumstances. Here, at least two

such mitigating circumstances were implicated: first, that

“It}he defendant was under the influence of extreme

mental or emotional disturbance when the murder was

committed,” and second, that “[t]he defendant’s capacity

to appreciate the criminality of the defendant’s conductor

to conform that conduct to the requirements of law was

substantially impaired as a result of mental disease or

defect.” Ind. Code § 35-50-2-9(c)(2) & (6). The only other

mitigating circumstance that could have applied to Stevens

under Indiana law was the catch-all “{a]ny other circumstances

appropriate for consideration.” Ind. Code § 35-50-2-%c)(8).

The Supreme Court has made clear that in evaluating

claims of ineffective counsel, “we must take [the] purpose

[of assistance of counsel]—to ensure a fair trial—as the

guide.” Strickland, 466 U.S. at 686. Strickland held that

counsel’s performance during the capital sentencing phase

of a criminal case is subject to the same standards as

21A

counsel’s performance during the trial itself. Jd. at 686-87.

In other words, the petitioner must demonstrate that

counsel was ineffective and that the petitioner was

prejudiced by counsel’s performance. /d. at 687. Counsel’s

most “basic duties” include the “duty to advocate the

defendant’s cause,” the “duty to bring to bear such skill

and knowledge as will render the trial [or capital

sentencing phase] are liable adversarial testing process,”

and the “duty to investigate,” which was at issue in

Strickland. Id. at 688, 691.

In assessing whether counsel was ineffective, the

Strickland Court requires the “defendant making a claim of

ineffective assistance [to] identify the acts or omissions of

counsel that are alleged not to have been the result of

reasonable professional judgment.” Strickland, 466 U.S. at

690. Following such a showing, “/t]he court must then

determine whether, in light of all the circumstances, the

identified acts or omissions were outside the wide range of

professionally competent assistance.” Jd. Although

counsel’s strategic choices are given considerable

deference, “strategic choices made after less than complete

investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations

on investigation.” Jd. at 690-91.

Strickland particularly referred to “[p]revailing norms

of practice as reflected in American Bar Association

standards” as “guides to determining what is reasonable,”

but it emphasized that a court’s ultimate determination of

counsel’s effectiveness must be grounded in the specific

circumstances of the case. /d. at 688. The ABA Guidelines

state that investigations into mitigating evidence “should

comprise efforts to discover all reasonably available

mitigating evidence and evidence to rebut any aggravating

evidence that may be introduced by the prosecutor.” ABA

22A

Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989).'

Although Stevens’s trial counsel presented testimony

from a number of witnesses, principally family members,

during the penalty phase of the trial, very little of this

testimony addressed any statutory mitigating factor other

than perhaps the catch-all “other circumstances” factor.

None of it addressed whether Stevens was suffering from

an extreme emotional disturbance or was unable to

appreciate the wrongfulness of his conduct at the time of

the murder, both theones that Dr. Coons’s and Dr.

Kaplan’s later diagnoses of Stevens suggest would have

been supported, had counsel only pursued them. See Ind.

Code § 35-50-2-9(cX2) & (6). Stevens contends that this

failure to investigate and present mitigation evidence on

his mental state constituted deficient performance. The ©

State responds that defense counsels’ choice not to look for

other mental health professionals and instead to rely on

Dr. Lennon’s testimony was a reasonable strategic

decision on the part of counsel and “a straightforward

approach to mitigation, as it explained reasons for

Stevens’s conduct that portrayed Stevens himself as a victim.”

The strategic reasons that might, at a stretch, have

justified this decision at the guilt phase, fall apart when we

Later, the Supreme Court cited this standard specifically and

approvingly in its decision in Wiggins v. Smith, 539 U.S. 510, 524

(2003). The Wiggins case, however, was decided six years after

the Indiana Supreme Court considered Stevens’s ineffective

assistance of counsel claims, and therefore for purposes of this

case Cannot serve as a source of “clearly established Federal law,

as determined by the Supreme Court.” Eckstein v. Kingston, 460

F.3d 844, 848 (7th Cir. 2006). Nevertheless, Wiggins sheds some

light on what the Court itself understood as the scope of its

Strickland holding.

23A

consider that at the sentencing phase Stevens had nothing

left to lose. The lawyers’ decision to forego presenting this

kind of mitigation evidence was made without the kind of

- Investigation into Stevens’s mental health that Strickland

calls for, after Stevens’s lawyers had concluded that Dr.

Lennon was a “quack.” Indeed, it is uncontested that

Stevens’s lawyers knew nothing about the content of Dr.

Lennon’s planned testimony. The lawyers confessed at the

post-conviction hearing that they were utterly in the dark

about what Dr. Lennon would say when he took the stand.

They frankly admitted that during tnal preparations, Dr.

Lennon would only repeat, “I can handle it. Don’t worry

about it.” This is a complete failure of the duty to

investigate with no professional justification. Where an

expert witness’s opinion is “crucial to the defense theory],|

defense counsel’s failure to have questioned [the expert] . .

. prior to trial is inexcusable.” Combs v. Coyle, 205 F.3d

269, 288 (6th Cir. 2000).

Furthermore, given the fact that defense counsel did

know what Dr. Lennon had written in his report, we

cannot imagine what they hoped to gain by calling Dr.

Lennon to the stand at sentencing. This decision was the

catalyst for their action in turning over Dr. Lennon’s

extremely detrimental written report to prosecutors prior

to trial. The Indiana Supreme Court indicated that this fact

did not constitute an indication of deficient performance

since the trial court had required “any reports from

experts” to be turned over to the State prior to trial. Stevens

v. Indiana, 770 N.E.2d 739, 748 n.4 (Ind. 2002). Our

review of the record reveals, however, that the trial court’s

order pertained only to reports from expert trial witnesses

retained by the defense. Stevens’s lawyers could have

designated Dr. Lennon as a trial consultant rather than an

expert witness, thereby shielding his written report from

the prosecution. See Indiana Trial Rule 26(B)(4)(b) (“A

24A

party may discover facts known or opinions held by an

expert who has been retained or specially employed by

another party in anticipation of litigation or preparation

for trial and who is not expected to be called as a witness

at tral, only ... upon a showing of exceptional

circumstances... .”); cf. Beauchamp v. Indiana, 788 N.E.2d

881, 892 (Ind. Ct. App. 2003) (applying Rule26(B)(4)(b)

and stating that “a party should certainly be protected

when obtaining expert advice he requires in order to

properly evaluate and present his case without fear that

every consultation will be discoverable”).

A straightforward application of the first Strickland

requirement compels a conclusion that these “acts and

omissions” of Stevens’s counsel during the capital

sentencing phase constitute errors “so serious that counsel

was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland, 466 U.S.

at 687, 690. We conclude, on this record, that the

performance of Stevens’s lawyers at his capital sentencing

proceedings fell below the constitutional minimum.

We thus turn to the prejudice inquiry. The Strickland

Court held that in order to show prejudice, “[t]he

defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466

U.S. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Jd.

As it did for the guilt phase of the trial, the Indiana

Supreme Court reasoned that Stevens was not

disadvantaged by his counsels’ failure to develop

mitigation evidence regarding his psychological state

because such evidence “would have been strongly

contradicted by the extensive evidence of the defendant’s

multiple attempts to kill Zachary and then carefully to take

25A

steps to cover-up the crime.” Stevens, 770 N.E.2d at 754.

But there is an important difference between the statutory

mitigating factors of § 35-50-2-9(c)(2) & (6) for capital

sentencing purposes and the requirements for proving an

insanity defense at the guilt phase. Furthermore, the

burden on the defendant is not as heavy at sentencing as

during the guilt phase. See Baird v. Davis, 388 F.3d 1110,

1122 (7th Cir. 2004) (“Substantial impairment of one’s

capacity to conform conduct to the requirements of law as

a result of mental disease or defect is qualitatively different

from the mere status of being ‘under the influence’ of

extreme mental or emotional disturbance.”); St. Pierre v.

Walls, 297 F.3d 617, 632 (7th Cir. 2002) (‘While a

defendant’s mental state at the time of the crime might not

rise to the level of a defense to the crime, it can be relevant

in a mitigation hearing.”). As a legal matter, a mental

illness mitigation defense to the imposition of a death

sentence may be available even if an insanity defense to the

murder charge is not.

In this case, we find a reasonable probability—that is,

one sufficient to undermine our confidence in the out-

come of the sentencing phase—that the result would have

been different if the jury had heard mainstream expert

psychological testimony of the sort presented by Dr.

Coons and Dr. Kaplan at the post-conviction hearing. See

Strickland, 466 U.S. at 694. Competent evidence of

Stevens’s mental illness would have strengthened the

general mitigation evidence presented by defense counsel

concerning Stevens’s difficult background by focusing the

jury on the concrete results of years of abuse on Stevens’s

psyche. There was, in addition, little downside risk of

presenting such evidence to the jury; evidence of the most

damning sort was already before the jury. Cumulative

evidence of his predatory pedophilia and his specific

actions on the fateful day was not likely to make any

26A

difference. And unlike general mitigation evidence

concerning Stevens’s background, evidence about

Stevens’s severely dissociated condition and impaired

ability to appreciate the wrongfulness of his conduct at the

time of the killing would have provided his lawyers a basis

for rebutting the aggravating factors highlighted by the State.

On this record, defense counsels’ decision to call Dr.

Lennon to testify before the jury at the penalty phase—not

to mention their decision to call him a second time to

testify before the trial judge at sentencing—can only be

viewed as prejudicial to the outcome of the sentencing

proceeding. Not only did Dr. Lennon stun defense counsel

by revealing to the jury that Stevens had engaged in

necrophilia after the murder, he also gave the prosecution

a gift by expressing his belief in Stevens’s future

dangerousness—a subject that the prosecution itself is not

permitted to argue as an aggravating circumstance under

Indiana law. See Wisehart v. Indiana, 693 N.E.2d 23, 60

(Ind. 1998). Not only did Dr. Lennon’s testimony almost

certainly influence the jury against Stevens, it also

evidently had a strong impact on the trial judge. One

cannot read the court’s sentencing order, with its

references to “cool deliberation,” “self-preservation,” and

“sexual gratification,” without seeing a close reflection of

Dr. Lennon’s written report and testimony.

We conclude that the conduct of Stevens’s lawyers at

his capital sentencing proceedings fell below the

constitutional minimum standard and that this was

prejudicial to Stevens. The Indiana Supreme Court’s ruling

to the contrary amounted to an unreasonable application

of Strickland.

C. Other Claims

In addition to his arguments about his counsels’

handling of the expert psychological evidence, Stevens

27A

raises two other complaints about his lawyers’ assistance

on which we comment briefly: that they were ineffective

for failing to object to the requirement that he wear a stun

belt throughout the trial and that the district court

improperly denied him discovery to pursue an argument

that prosecutors presented perjured testimony to the jury.

With regard to the stun belt, Stevens claims that a

criminal defendant has a clearly established constitutional

right to be free of restraints at trial and that he was

prejudiced because his fear of being electrocuted made him

appear withdrawn and unremorseful to the jury. The

Indiana Supreme Court found no merit in this claim.

While acknowledging that since the time of Stevens’s trial

it had decided that criminal defendants may not be

‘required to wear stun belts in Indiana courtrooms, see

Wrinkles v. Indiana, 749 N.E.2d 1179 (Ind. 2001), the court

concluded that Stevens was not prejudiced by being forced

to wear the device because the jurors were not aware that

he had it on and because juror testimony at the post-

conviction hearing did not indicate that the device had a

significant effect on Stevens’s demeanor.

The Indiana Supreme Court’s analysis of this claim is

not unreasonable. Although the six jurors who testified’ at

the post-conviction hearing stated that Stevens appeared

emotionally withdrawn at trial, Stevens also appeared

withdrawn in the videotaped confession in which he was

not wearing any restraint. It is thus impossible to know

whether Stevens’s demeanor at trial was a result of being

forced to wear the stun belt or just reflective of his more

general state of mind and the emotions he was

experiencing in the courtroom.

In an attempt to salvage this claim, Stevens contends

that the use of a stun belt during a criminal trial is

inherently prejudicial. The cases cited by Stevens do not,

28A

however, go so far. They hold instead that a defendant’s

general right to be free of restraints in the courtroom is not

absolute, but rather it is based on a balancing of the

defendant’s right not to be viewed in a prejudicial light by

the jury against the court’s need for security. See Deck v.

Missouri, 544 U.S. 622, 633 (2005) (noting that although

“courts cannot routinely place defendants in shackles or

other physical restraints visible to the jury during the

penalty phase of a capital proceeding,” this constitutional

requirement “is not absolute” and so a judge may take

account of “special circumstances . . . that may call for

shackling”); Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986)

(“holding that the conspicuous . . . deployment of security

personnel in a courtroom during trial” must be evaluated

on a “case-by-case” basis); Illinois v. Allen, 397 U.S. 337,

344 (1970) (declining to hold that the binding and gagging

of a criminal defendant is unconstitutional “under any

possible circumstances”). In keeping with this line of cases,

we have described the use of a stun belt as a “method[ | of

restraint that minimize[s] the risk of prejudice” because it

is hidden beneath a defendant’s clothing. United States v.

Brooks, 125 F.3d 484, 502 (7th Cir. 1997).

Stevens’s final argument is that the district court erred

by refusing to permit him to conduct discovery into an

alleged pre-trial deal between prosecutors and state witness

Tracy Eastin, in which prosecutors were going to give

Eastin a letter requesting leniency in exchange for his

testimony against Stevens. Rule 6(a) of the Rules

Governing Section 2254 Cases in the United States District

Courts states that “[a] party shall be entitled to invoke the

processes of discovery available under the Federal Rules of

Civil Procedure if, and to the extent that, the judge in the

exercise of his discretion and for good cause shown grants

leave to do so, but not otherwise.” The district court

concluded that discovery was not war-ranted in this case

29A

because the letters Stevens presented as evidence of the

alleged deal showed only that prosecutors had attempted

to assist Eastin “to obtain a safe housing assignment

within the prison system so that he could be free from a

possible assault from fellow inmates who were upset with

his having testified against the petitioner.”

Stevens argues only that the district court read the

correspondence between prosecutors and Eastin too

narrowly, and it should have inferred that a broader pre-

existing deal had been reached. Suffice it to say that we are

not persuaded. The district court’s interpretation of the

letters, while perhaps not the only possible way to look at

them, was reasonable, and its denial of discovery on this

basis was well within its discretion.

Ill

For the foregoing reasons, the judgment of the district

court is AFFIRMED to the extent that it denies habeas corpus

relief with respect to Stevens’s conviction, and it is

otherwise VACATED. The case is REMANDED with

instructions to issue a conditional writ of habeas corpus

that sets aside the sentence of capital punishment

unless, within 120 days, the State affords Stevens

another penalty hearing.

RIPPLE, Circuit Judge, concurring in part and

dissenting in part. I agree with the principal opinion in

holding that Mr. Stevens’ trial counsel was constitutionally

ineffective during the penalty phase of the trial, and,

therefore, that Mr. Stevens is entitled to a new sentencing

proceeding. I write separately because I believe that

counsel’s shortcomings not only affected Mr. Stevens’

sentence, but also his conviction. Therefore, I would grant

30A

habeas relief with respect to his conviction as well as

his sentence.

..

As the principal opinion explains, counsel for Mr.

Stevens were aware “that a comprehensive mental health

evaluation would be a crucial prerequisite for determining

trial strategy, yet after Dr. Lennon failed to provide them

with such an evaluation they neglected to consult an

alternative health expert.” Slip op. at 10. Counsel did not

offer any strategic basis for not seeking out additional

expert advice, and the State’s proffered explanation for the

reasonableness of counsel’s choices does not suffice to

justify their actions. See id. The principal opinion, there-

fore, concludes, correctly, that “[ijn light of Stevens’s

lawyers’ admissions and the overall weakness of the

defense they presented at trial, we are inclined to believe

that their performance was ineffective.” Slip op. at 12.2

The pnncipal opinion turns then to Strickland’s

prejudice prong to determine whether Mr. Stevens’

conviction may have been affected by counsel’s failure.

As the principal opinion notes, counsel’s sole reliance on a

voluntary manslaughter defense is troubling for several reasons.

See slip op. at 12. First, the facts as presented to the tnal court did

not justify a voluntary manslaughter instruction. Second,

securing a voluntary manslaughter instruction, like pursuing a

mental illness defense, would have opened the door to Eastin’s

testimony. See id. Finally, nothing precluded counsel from

pursuing a voluntary manslaughter defense.and at the same time

presenting evidence of mental illness. Both focus on the

defendant’s ability to form the requisite criminal intent to commit

murder, and the record does not suggest any justification for only

_ pursuing the former course.

31A

After reviewing the standards for mental illness under

Indiana law and also the standard for demonstrating

prejudice under Strickland, the principal opinion concludes

that “the Indiana Supreme Court’s conclusion that no jury

could conclude that Stevens did not appreciate the

wrongfulness of his conduct at the time of the murder was

not implausible.” Jd. at 14. In other words, the Supreme

Court of Indiana’s conclusion—that Mr. Stevens had not

suffered any prejudice as a result of his counsel’s

missteps—was not unreasonable.

2.

In reaching this conclusion, I believe that the principal

opinion reads the decision of the Supreme Court of

Indiana too broadly. With respect to the question of

whether trial counsel’s investigation of the expert was

adequate, the Supreme Court of Indiana concluded: “The

trial court determined that defense counsel adequately

investigated issues of substance abuse and mental illness

and reason-ably chose to pursue a different strategy. The

post conviction court did not err in denying relief on this

claim.” Stevens v. State, 770 N.E.2d 739, 749 (Ind. 2002)

(footnote omitted). This language speaks in terms of

attorney performance—the focus of Strickland’s first

prong-—rather than to preyudice—the focus of Strickland’s

second prong. Later in its opinion, the Supreme Court of

Indiana also addresses counsel’s decision to present a

voluntary manslaughter theory as opposed to presenting a

mental disease defense. After reviewing counsel's actions,

the state supreme court again uses language that speaks to

the performance inquiry of the first prong of Strickland:

“The post-conviction court found that counsel’s decision

to pursue the voluntary manslaughter strategy, while

ultimately unsuccessful, did not amount to deficient

32A

performance.” Jd. at 753. And, again, the Supreme Court

of Indiana upheld that decision: “We conclude that the

evidence as a whole does not lead unerringly and

unmistakably to a decision opposite that reached by the

post-conviction court, and we find that defense counsel’s

choice of defense theory did not constitute ineffective

assistance of counsel.” Jd. In sum, the Supreme Court of

Indiana rested its rejection of the merits of Mr. Stevens’

ineffective assistance of counsel claim on Strickland’s

performance prong; it did not address directly the question

of prejudice.

3.

AEDPA instructs that, in the usual case, we apply a

deferential standard to a state-court determination that is

challenged by way of a habeas petition. See Canaan v.

McBride, 395 F.3d 376, 382 (7th Cir. 2005) (“Ordinarily, §

2254(d) requires that we determine whether the state

court’s decision was ‘contrary to, or involved an unreason-

able application of, clearly established Federal law as

determined by the Supreme Court,’ or ‘was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’ ”). “This

standard only applies, however, to a claim that was

adjudicated on the merits in State court proceedings.” Jd.

(internal quotation marks and citations omitted). “As a

practical matter, a federal court cannot apply the

deferential standard provided by § 2254(d) in the absence

of any state court decision on the issue.” Jd. This principle

is equally applicable to the separate inquiries under each

prong of Strickland. In the words of the Supreme Court,

“our review is not circumscribed by a state court

conclusion with respect to prejudice, as neither of the state

courts below reached this prong of the Strickland analysis.”

33A

Wiggins v. Smith, 539 U.S. 510, 534 (2003). Thus, because

the Supreme Court of Indiana did not reach the question

of prejudice, we need not apply AEDPA deference;’ we

In addition to considering the decision of the Supreme Court of

Indiana, Judge Manion suggests that, in assessing the question of

prejudice, we should look at rationale relied upon by the state

trial court as well, specifically the state trial court’s “finding that

the additional psychological evidence altered the nature of the

sexual encounters between Stevens and Zachary.” Concurring

op. at 41-42. Judge Manion acknowledges that “[t}he Supreme

Court of Indiana did not specifically mention the different

description of the sexual encounter, but never rejected the trial

court’s findings and twice stated that additional evidence ‘would

have opened the door to the admission of substantia!

incriminating evidence not otherwise presented during the guilt

phase.’ ” /d. at 42 (quoting Stevens v. State, 770 N.E.2d 739, 753

(ind. 2002)).

For purposes of our review under AEDPA, the operative state-

court decision “is that of the last state court to address the claim

on the merits.” Garth v. Davis, 470 F.3d 702, 710 (7th Cir. 2006).

In this case, the Supreme Court of Indiana, although specifically

mentioning other evidence that could have been introduced had

Mr. Stevens mounted a mental illness defense (namely Eastin’s -

testimony), did not mention the alternative description of Mr.

Stevens’ last sexual encounter with Zachary. This omission may

have been inadvertent, or the evidence may have been

encompassed by the reference to “substantial incriminating

evidence.” However, it also may be the case that the Supreme

Court of Indiana did not agree with the tnal court’s conclusion

that the additional facts fundamentally altered the jury’s view of

the “relationship” hetween Mr. Stevens and Zachary. One of the

rationales for modern statutory rape laws is that sexual relations

with a minor, especially one as young as Zachary, are “inherently

nonconsensual.” See, e.v., Daryl J. Olszewski, Comment, Statutory

Rape in Wisconsin: History, Rationale & the Need for Reform,

89 Marq. L. Rev. 693, 699(2006). The Supreme Court of Indiana

may have concluded that, even absent this evidence that the last

encounter was ‘orcible, not consensual, the jury already would

34A

look to see only whether there is a reason able probability

that, but for counsel’s errors, the result of the trial would

have been different.

4.

In this case, the evidence presented at Mr. Stevens’

post-conviction hearing established that Dr. Lennon’s

ideas concerning mental illness were “completely

abandoned” by the American Psychiatric Association in

the 1980s and that “anyone who subscribes to the ‘myth of

mental illness’ is not really in the mainstream of current

thought among professionals.” Post Conviction Record

(“PCR”) at 2015 (testimony of Dr. Kaplan). Mr. Stevens’

counsel “had concluded that Dr. Lennon was [a] ‘quack,’”

but did not engage in further, critical investigation of Dr.

Lennon’s testimony or his theones that would have led them

to seek the assistance of another expert. Slip op. at 20.

Had Mr. Stevens’ counsel sufficiently investigated Dr.

Lennon’s testimony, and, as a result, secured additional

expert evaluation, the jury would have been presented with

a psychiatric explanation for Mr. Stevens’ actions. At the

have considered Mr. Stevens to be a sexual predator. In short, the

jury’s view would not have changed with the introduction of this

additional evidence.

Thus, even assuming that the Supreme Court of Indiana’s

commentary on “openfling] the door to the admission of

substantial incriminating evidence,” Stevens, 770 N.E.2d at 753, is

meant to address Strickland’s second prong, it is not at all clear

that the Supreme Court of Indiana meant to encompass within

this statement reference to the state tral court’s findings

concerning the nature of the relationship between Zachary and

Mr. Stevens. Consequently, these findings should not factor into

this court’s AEDPA analysis.

35A

state post-conviction hearing, Dr. Kaplan testified that, at

the time Mr. Stevens committed the offense, “he was

laboring under dissociative disorder not otherwise

specified, borderline personality disorder, and intoxication

from LSD and the aftereffects of marijuana,” PCR at

2004,and that Mr. Stevens’ capacity to make a personal

choice at the time of the crime was “nil,” id. at 2029. Dr.

Coons echoed Dr. Kaplan’s diagnoses, see id. at 1885-86,

and also concluded that, at the time of the offense, Mr.

Stevens was “laboring under extreme emotional

disturbance” and was impaired in his ability both to

conform his conduct to the requirements of the law and to

appreciate the wrongfulness of his conduct, id. at 1891-92.

In short, had counsel secured an expert who adhered to

mainstream theories within the _ psychiatric and

psychological communities, the expert would have

presented evidence establishing the elements of a mental

illness defense under Indiana law. See slip op. at 13

(quoting Ind. Code § 35-41-3-6).

Given this evidence, I believe that there is at least a

reasonable probability that, had the jury been privy to this

evidence, its result would have been different. I must

respectfully register my disagreement with the principal

opinion that, in these circumstances, there is a

fundamental difference between mounting an insanity

defense and establishing statutory mitigating factors for

purposes of capital sentencing. See slip op. at 22. Here, the

experts not only presented evidence that could establish

that Mr. Stevens was operating “under the influence” of a

mental disease at the time of the murder—a mitigating

factor under Indiana’s capital sentencing law, see Ind.

Code § 35-50-2-9(c)(2), but also that he was “unable to

appreciate the wrongfulness of the conduct at the time of

the offense”—a defense to the crime, see Ind. Code § 3541-34.

_36A

Additionally, I believe that the principal opinion over-

states the downside to presenting a mental disease defense

during the guilt phase. The principal opinion states that

“It]he strategic reasons that might, at a stretch, have

justified this decision at the guilt phase, fall apart when we

consider that at the sentencing phase Stevens had nothing

left to lose.” Slip op. at 20. As a practical matter, Mr.

Stevens had nothing to lose at the guilt phase. Absent

expert testimony that, at the time of the killing, Mr.

Stevens’ actions were caused by a mental disorder and he

was unable to control his actions, the jury was left with no

other alternative than to conclude that Mr. Stevens not

only chose to engage in predatory pedophilia, but also that he

willingly disposed of his victims as dictated by his own interests.

~

Furthermore, even if the decision of the Supreme

Court of Indiana, either by itself or in conjunction with the

post-conviction trial court’s decision, see Stevens, 770

N.E.2d at 749 n.5, could be construed as reaching

Strickland s prejudice prong, I could not join the principal

opinion’s conclusion that the decision of the Supreme

Court of Indiana was a reasonable one. The expert

testimony during the post-conviction hearing shows that

Mr. Stevens’ upbringing was “a recipe for developing

someone with a dissociative disorder.” PCR at 2020. Both

experts testified that this disorder, in conjunction with Mr.

Stevens’ other infirmities, caused him to kill Zachary and

prevented him from recognizing the wrongfulness of his

actions. Additionally, Dr. Kaplan explained how the

nature of Mr. Stevens’ disorders and the events leading to

the killing of Zachary were inconsistent with

premeditation. Because the testimony of competent experts

would have explained Mr. Stevens’ actions in terms of his

37A

mental illness and also would have diminished the impact

of any inculpating evidence of premeditation, I do not

believe that a determination that Mr. Stevens was not

prejudiced by his counsel’s lapse of judgment could be

characterized as a reasonable one.

Conclusion

For the foregoing reasons, I not only would grant Mr.

Stevens habeas relief with respect to his sentence, I also

would grant the writ with respect to his conviction. On this

ground, I respectfully dissent in part from the judgment of

the court.

MANION, Circuit Judge, concurring in part and

dissenting in part. I join the opinion of the court as to part

I]-C regarding the claims concerning the stun belt and

discovery issues. I concur with Judge Wood in denying

habeas relief from the conviction, but write separately to

explain my agreement with the state court’s reasoning. I

respectfully dissent from the granting of habeas relief for

the death penalty sentence because I conclude that the

state court’s decision denying collateral relief did not

include unreasonable determinations of the facts and was

not contrary to or an unreasonable application of Supreme

Court precedent.

In May 1993 Christopher Stevens was released on

probation from the Marion County jail in Indiana where

he had been serving a sentence for child molestation. He

moved in with his father, whose home was in the same

subdivision as that of ten-year-old Zachary Snider’s family.

In the early summer, Stevens attended and video taped one

of Zachary’s Little League games and later, with his

father’s permission, took Zachary fishing. Stevens’s

relationship with Zachary culminated in sexual contact

38A

with him. Because a fuller recitation of the facts is

significant to evaluating and understanding the Supreme

Court of Indiana’s decision, the following is a portion of

that court’s factual findings:

in the videotaped confession . . . Stevens told

the officers that on Thursday, July 15, Zachary

visited Stevens in the early afternoon, but

stayed only for a short time, saying that he

would return after he had picked up some

money, talked to his father, and changed his

clothes. When he returned, Zachary and

Stevens talked for a while as Stevens flipped

through the channels on his television, and

then the two went to Stevens’ bedroom and

“messed around,” which mainly included the

two performing fellatio on each other but never

anal sex. This activity was not new to the pair,

as they had had an ongoing sexual relationship

since shortly after Stevens returned to Stardust

Hills after serving his time in the Marion

County jail. After they “did stuff for awhile,”

Zachary angrily confronted Stevens with a

rumor he had heard concerning Stevens having

sexual relations with dZachary’s mother.

Because of this rumor, Zachary threatened to

reveal Zachary and Stevens’ sexual relationship

to his parents. This threat made Stevens “real

scared.” He stated,

He said, he, he threatened to tell . . . about

me and him, and, uh, I’d just went

through a bunch of [expletive] in Indy,

and that was just, just on my mind. I was

like, I just didn’t want to, thinking to |

myself, you know, I just can’t go through all

that [expletive] again.

39A

After Zachary’s threat, the two “messed around

some more,” which Stevens again stated meant

“having sex.” Once finished, Stevens led

Zachary by the hand into his brother’s room

and the two got onto the bed. Stevens took one

of his brother’s pillows and placed it over

Zachary’s face in an attempt to suffocate him.

Zachary did not really resist; rather, “he just

- kept sayin’ ‘I love you, Chris; I love you,

Chris.’” Because the pillow “wasn’t doing

anything,” Stevens looked around the room

and noticed a Sega Genesis controller on the

floor. He picked it up and, using the cord,

wrapped it around Zachary’s neck, at first just

once but then two or three times, and strangled

the boy. When Stevens “thought it was all

over,” he removed the cord from Zachary’s

neck and proceeded to pace back and forth

between Stevens’ brother’s bedroom and his

own room looking at Zachary’s body and

contemplating what he would now do.

About five minutes later Zachary, while still

unconscious, began to take deep breaths. So,

Stevens said, “I went [into my kitchen] and got

a trash bag and put it over his head and

wrapped it around his head, he was

unconscious so, you know, I knew he wouldn’t

be ripping it off his face and stuff.” Once the

child had suffocated, Stevens carried Zachary

from his brother’s bedroom into his own room

and laid the boy’s body on his bed. Stevens

later revealed to a psychologist for the defense

that he killed for fear of having to return to

prison brought on by Zachary’s threat to tell.

40A

Stevens then went out to the garage, pulled a

trailer, lawn mower, and grill onto the

driveway to make room for his car, brought his

car into the garage, and shut the garage door.

He then placed Zachary’s bike* in the back of

the car, went in and got Zachary’s body and

placed it also in the back of his car, and then

covered them both with a cover. Stevens then

f described in detail how he drove out into the

country and threw Zachary’s body and bike

over a bridge, naming the roads he took to

reach the remote location. Initially, the bike got

caught in a tree “where anybody could see it if

they walked by or drove by,” so Stevens

“jumped down there” and pulled both

Zachary’s body and bicycle beneath the bridge.

In relating his state of mind during the murder

and immediately thereafter, he described

himself as “nervous and scared,” “all frantic”

and “not really thinking.”

Once home, Stevens telephoned Mark White to

request help in pushing the trailer in his

driveway back into his garage. After White

assisted Stevens and left, Stevens placed the

mower and grill back in the garage, and went

back inside his house. Later that evening,

Stevens took a can of Lysol and sprayed down

his car, the cover used in the car to conceal the

body and bike, and his and his brether’s beds.

He also played basketball with White, during

[Footnote in original.}] Zachary’s bike was already in the garage

because, Stevens stated, ‘““whenever he comes over | have him put

his bike in the garage [. . . ] so [ ] nobody will see his bike there.”

4IA

which time he saw the Sniders dnving around

the neighborhood looking for Zachary. When

he and White finished playing basketball,

Stevens called Mrs. Snider to learn the status of

their search for Zachary, but did so under the

guise of inquiring about some rock concert

tickets. During this.call, Mrs. Snider asked if

Stevens had seen Zachary that day, to which

Stevens said, “No.” Mrs. Snider then revealed

that Zachary was missing, and Stevens offered

to help them look. Mrs. Snider replied that she

would call him if they needed his help.

Although she never called back, Stevens went

over to their home just before 9 p.m. As he

talked with Mrs. Snider, he saw a policeman

arrive and walk up the Sniders’ driveway.

Because Stevens “didn’t want to be around the

cop,” he told Mrs. Snider that he wouid “go

check a couple of places” and quickly departed.

Stevens then went to various houses asking the

occupants if they had seen Zachary.

Later that night Stevens returned to Zachary’s

body because he recalled leaving the plastic

trash bag wrapped around Zachary’s head.

Stevens stated, “I went back out there to get the

trash bag cause, I figured if you guys [the

police] seen the trash bag and looked in our

house and seen the same kind of trash bags

and, and stuff.” Stevens described the trash bag

as One with handle ties, green outside and black

inside. Upon recovering the bag, Stevens drove

away from the scene and, after traveling some

distance, threw the bag out of his window.

Upon returning to Stardust Hills he again went

to the Sniders’ house and inquired whether

&

42A

they had heard anything yet, telling them he

was up at that late hour because he was having

trouble sleeping. :

After the confession, the police searched for the

trash bag mentioned by Stevens. They found

one matching Stevens’ description on the side

of the road about a mile from where the body

was located. While other bags observed during

their search all contained trash, this one

contained only road dust and debris, and

appeared to have “at one time contained

something that caused it to be stretched out,”

Later that same day, pursuant to a search

warrant, police found similar trash bags and a

Sega Genesis video game and controllers in

Stevens’ home.

The body found by police under the bridge was

later identified through dental records as that of

Zachary Snider. Also, Mr. Snider later

identified the bike found with the body to be

Zachary’s. The pathologist who performed the

autopsy, though unable to determine the cause

of death because of the state of decomposition,

observed no evidence inconsistent with death

by either strangulation or suffocation. He found

no broken bones and no evidence of any

penetrating injury to the torso or lower

extremities. When asked about the potential for

a natural cause of death, the pathologist replied

that the tissues of the heart, lungs, liver, and

kidneys available for examination showed no

signs of disease. The forensic entomologist who

examined insect samples found in the body and

in the soil under the bridge placed the time of death

sometime between noon and sunset on July 15.

43A

Stevens v. State of Ind., 691 N.E.2d 412, 418-19 (Ind. 1997)

(internal c..ations to the record omitted). Stevens was

charged with first degree murder, and trial preparations

and proceedings followed. The principal issue in this

appeal involves the expert testimony of a psychologist, Dr.

Lawrence Lennon. Dr. Lennon did not testify at the guilt

phase of the tnal, only during the penalty phase and at

sentencing. Stevens claims that his counsel was ineffective

at both the guilt and penalty phases for retaining only Dr.

Lennon, whom Stevens characterizes as an inadequate and

prejudicial expert. The state court denied post-conviction

relief on this basis.

To obtain habeas corpus relief in this court under

AEDPA, Stevens must show that the state court’s

determination was contrary to or an unreasonable

application of Supreme Court precedent, or an

unreasonable determination of the facts. Central to this

appeal is the familiar case of Strickland v. Washington, 466

U.S. 668 (1984). Strickland requires a petitioner claiming

ineffective assistance of counsel to demonstrate both

constitutionally deficient performance and prejudice. In

ineffective assistance of counsel claims, this court has .

explained that, |

[if] a state court has denied a Strickland claim

on the merits, under the AEDPA we generally

review for clear error. As we noted in Holman v.

« Gilmore, “Strickland calls. for inquiry into

degrees; it is a balancing rather than a bnight-

line approach .... This means that only a clear

error in applying Strickland’s standard would

support a writ of habeas corpus.” 126 F.3d

876,881-82 (7th Cir. 1997). This is because

“Strickland builds in an element of deference to

counsel’s choices in conducting the litigation

44A

fand] § 2254(d)(1) adds a layer of respect for a

state court’s application of the legal standard.” Jd.

United States ex rel. Bell v. Pierson, 267 F.3d 544, 557 (7th

Cir. 2001) (emphasis added). We therefore review for clear

error in the Supreme Court of Indiana’s decision.

With respect to Strickland’s performance prong, I am

not “inclined to believe that [trial counsels’] performance

was ineffective,” at the guilt stage as Judge Wood’s

opinion suggests. Ante at 12. Nonetheless, I agree with

Judge Wood that the state court did not clearly err in

applying Supreme Court precedent regarding the guilt

phase of the trial because Stevens was not prejudiced by

his counsels’ performance. The Supreme Court of Indiana

cites the correct standard to evaluate prejudice under

Strickland, specifically noting that Stevens must

demonstrate “that his counsels’ errors were so serious as to

deprive him of a fair trial because of a reasonable

probability that, but for counsel’s unprofessional errors,

the result would have been different.” Stevens v. State of

Ind., 770 N.E.2d 739, 746 (Ind. 2002) (citing inter alia

Strickland, 466 U.S. at 694). The Supreme Court of Indiana

further clarified that ‘“[a] reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Id. (citing Strickland, 466 U.S. at 694). Of

course, “more than a correct citation is needed to avoid a

decision ‘contrary to’ clearly established federal law.”

Burgess v. Watters, 467 F.3d 676, 683 (7th Cir. 2006). The

state court, however, proceeded to apply this standard,

concluding that an alternative mental illness defense at the

guilt phase “was not without its pitfalls” because this defense

would have opened the door to the admission

of substantial incriminating evidence not

otherwise presented during the guilt phase.

This evidence included testimony of a witness

45A

that, upon the defendant’s prior release from

jail onto probation for a previous conviction of

child molesting, the defendant had declared

that he planned to kill his next child molesting

victim to avoid returning to jail.

Id. at 749; see also id. at 753. Furthermore, the Supreme

Court of Indiana noted that one of Stevens’s post-

conviction experts, Dr. Coons, ‘“acknowledge[ed] that

[Stevens] could appreciate the wrongfulness of his conduct

when he took steps to hide Zachary’s body.” Jd. at 749 n.5.

Based on this additional evidence, the Supreme Court of

Indiana noted that Dr. Coons’s testimony “would have

had little or no effect on the jury’s verdict... .” Id.

Another piece of incriminating evidence that would

have come into evidence through the additional mental

health experts is a different description of the nature of the

sexual encounters between Stevens and Zachary. The state

trial court made a finding that the additional psychological

evidence altered the nature of the sexual encounters

between Stevens and Zachary. The understanding at trial

had been that the molestation was “consensual,” but the

testimony of Drs. Kaplan and Coons during the state post-

conviction hearing reveals a different story. According to Dr.

Kaplan, Zachary and Stevens were

wrestling around as play, and then [Stevens]

grabbed his shorts and, well, Zachary I think

hit . . . Steven[s]’s penis, and then. [Stevens]

grabbed his shorts, pulled them down, and at

that point, again, you know, he—he had then

forced himself on Zachary, made him, you

know, suck his penis, and . . . they had sexual

relations. And then after the sexual relations

were concluded, Zachary told him, you know,

“I’m going to tell my mother about what you

46A

did to me.” And then, again, he saw Zach as

the victimizer now.

Kaplan earlier in his testimony provided the following analysis:

In [Stevens’] mind, he was a seducer of

children, not a forced raper of children. So as

long as he saw this as what he felt to be

consensual, he didn’t see anything wrong with

it. And that’s probably the greatest problem for

him with the Zachary murder is that this was

the first ttme he had forced himself on another _

child and forcibly had sex. And to him, that

was very, very incongruent with his concept of

who he was and what sexual molestation is.

The Supreme Court of Indiana did not specifically

mention the different description of the sexual encounter,

but never rejected the trial court’s findings and twice stated

that additional mental illness evidence “would have

opened the door to the admission of _ substantial

incriminating evidence not otherwise presented during the

guilt phase.” Stevens, 770 N.E.2d at 753; see also id. at 749.

In sum, the state court’s determination that Stevens did not

suffer prejudice from his counsels’ performance at the guilt

phase is not contrary to or an unreasonable application of

Supreme Court precedent. I therefore agree with Judge Wood

that Stevens is not entitled to habeas relief from his conviction.

Proceeding to the penalty phase, just as the state court

did not err in upholding the conviction, the state court

similarly did not err in denying relief from the death

penalty sentence. I therefore respectfully disagree with

Judges Wood and Ripple regarding habeas relief from the

death penalty sentence.

The Supreme Court of Indiana concluded that the trial

attorneys “investigated the mental health issues through

47A

the use of Dr. Lennon.” Stevens, 770 N.E.2d at 755. The

court further quoted with approval the tnial court’s

finding that ‘“ ‘[dljefense counsel’s investigation of

Petitioner’s mental health and prior use of drugs was

reasonable’ ” and that defense counsel pursued a

‘strategy of portraying the petitioner as a passive victim of

abuse’ ” at the penalty phase. /d. at 754. Furthermore, the

state trial court found that based on the fuller description

of Stevens’ relations with Zachary that the new experts

offered, “[t}he jury would not consider such a violent,

voracious predator as someone deserving a penalty less

than death.” See Stevens Supp. App. at 65.

ac

In his penalty phase testimony, Dr. Lennon testified

regarding Stevens’s emotional immaturity and the impact

of abuse and his mother’s use of drugs and alcohol on

Stevens’s development. This mitigation testimony was in

addition to testimony from a variety of Stevens’s relatives

and individuals who could testify about and provide

documentation regarding his deplorable childhood. In this

case, the Supreme Court of Indiana found that Stevens’s

counsel “presented various witnesses and evidence

showing various mitigating circumstances including his

parents’ divorce and his living in the homes of different

people while growing up, the defendant’s troubled

childhood including suffering childhood sexual abuse, his

adolescent alcohol and drug use and diagnoses of passive

personality, his depression and suicide attempts, ai 1 his

poor academic performance.” Stevens, 770 N.E.2d at 753;

cf. Woods v. McBride, 430 F.3d 813, 825 (7th Cir. 2005)

(noting that “[c]Jounsel in this case actually presented

mitigation evidence during the penalty phase rather than a

half-hearted attempt to deflect culpability from the

defendant.”) (citing Wiggins v. Smith, 539 U.S. 510, 515-18,

526 (2003)). In the context of challenging a death penalty

sentence, “the question is whether there is a reasonable

48A

probability that, absent the errors, the sentencer . . . would

have concluded that the balance of aggravating and

mitigating circumstances did mot warrant death.”

Strickland, 466 U.S. at 695. The prosecutors argued for

three aggravating factors warranting the death penalty,

which the jury each found to be proven beyond a

reasonable doubt: that the defendant committed the

murder by intentionally killing the victim while commit-

ting child molestation, that the victim was under the age of

twelve, and that the defendant was on probation after a

felony conviction. The Supreme Court of Indiana was “not

persuaded that the evidence in the record unavoidably

points towards an opposite result” from the state tral

court’s conclusion that counsel were not ineffective.

Stevens, 770 N.E.2d at 755. Under the deferential standard

of AEDPA, this is not a decision that is contrary to or an

unreasonable application of Supreme Court precedent.

It is true that Dr. Lennon failed to follow counsels’

instructions not to prepare a report, responded to the

prosecutor’s unexpected question regarding necrophilia,

and discussed his unusual form of therapy. He was not a

very good witness. Yet, his performance at the penalty

phase (his first testimony in the case, since he did not

testify at the guilt phase), does not render Stevens’s

counsels’ performance ineffective. More importantly, the

Supreme Court of Indiana's conclusion that counsel

performed reasonably is not an unreasonable application

of Supreme Court precedent. Therefore it does not follow

that the jury or judge “would have concluded that the

balance of aggravating and mitigating circumstances did

not warrant death” if faced with additional expert

testimony presenting the diagnosis of disassociation.

Strickland, 466 U.S. at 695. Having reviewed the

videotaped confession as well as the record, I do not find

that the state court’s determination was unreasonable.

49A

Consequently, I respectfully dissent from granting habeas

relief on the death penalty sentence.

A true Copy:

Teste:

Clerk of the United States

Court of Appeals for the

Seventh Circuit

USCA-02-C-0072—6- 18-07

SOA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

CHRISTOPHER M. )

STEVENS, ) CAUSE NO.

) 4:03-CV-005 AS

Petitioner, )

)

V. )

)

DANIEL McBRIDE, ) DEATH PENALTY CASE

)

Respondent. )

MEMORANDUM AND ORDER

This proceeding is a petition filed by counsel on behalf

of the petitioner, Christopher M. Stevens, seeking relief

under 28 U.S.C. § 2254 from a state court criminal

proceeding in which ‘he was sentenced to death. An

extended oral argument, lasting. nearly 2 hours, was held

on the petition in South Bend, Indiana on December 6,

2004. This court greatly appreciates the professional

services of appointed counsel for Mr. Stevens.

Two published opinions of the Supreme Court of

Indiana will provide the basic factual setting of this case.

In Stevens v. State, 691 N.E. 2d 412 (Ind. 1997), the

unanimous decision of the Supreme Court of Indiana was

written by Chief Justice Shepard and entered on December

31, 1997. In Stevens v. State, 770 N.E. 2d 739 (Ind. 2002),

the unanimous decision of the Supreme Court of Indiana

was written by Justice Dickson and entered on June 26,

2002. The massive state record has been filed and

SIA

examined here pursuant to the mandates of Townsend v.

Sain, 372 U.S. 293 (1963), as well as 28 U.S.C. § 2254.

I. STANDARD OF REVIEW

{[U]nder § 2254(d) it must be shown that the

[state] Supreme Court’s decision was either

contrary to, or am unreasonable application

of, {the United State Supreme Court’s]

clearly established precedents, or was

based upon an unreasonable determination

of the facts.

Price v. Vincent, 538 U.S. 634, 639 (2003).

[A] decision by a state court is “contrary to”

our clearly established law if it “applies a

rule that contradicts the governing law set

forth in our cases or if it confronts a set of

facts that are materially indistinguishable

from a decision of this Court and

nevertheless arrives at a result different

from our precedent.

Price, 538 U.S. at 640. (Quotation marks omitted.)

[T]he phrase “clearly established Federal law,

as determined by the Supreme Court of the

United States” .. . refers to the holdings, as

opposed to the dicta, of this Court’s

decisions as of the time of the relevant state-

court decision.

52A

Williams v. Taylor, 529 U.S. 362, 412, (2000).

[A]s the statutory language makes clear, . . §

2254(d)(1) restricts the source of clearly

established law to this Court’s

jurisprudence.

Williams, 529 U.S. at 412.

As we have explained, a federal habeas court

may not issue the writ simply because that

court concludes in its independent

judgment that the state-court decision

applied a [United States] Supreme Court

case incorrectly. Rather it is the habeas

applicant’s burden to show that the state

court applied [that case] to the facts of his case

in an objectively unreasonable manner.

Price, 538 U.S. at 641 (quotation marks, citations and

brackets omitted). See also Early v. Packer, 537 U.S. 3

(2002), Woodford v. Visciotti, 537 U.S. 19 (2002), and

Wiggins v. Smith, 539 U.S. 510 (2003)

Thus, the. United States Supreme Court has made

clear that it is not for this court to decide the merits of the

petitioner’s arguments from scratch. Rather, the task laid

out before this court in a § 2254 habeas corpus petition is

to determine whether the decision of the state court, in this

' case the Indiana Supreme Court, falls outside of that broad

swath of reasonable interpretations of the law based solely

on the holdings of United States Supreme Court opinions

at the time of the state court decision.

S3A

Ii. LEY TER REQUESTING DISMISSAL

As a preliminary matter, the petitioner, acting pro se,

wrote a handwritten letter to this court asking that this case

be dismissed. Given that the court is now denying this

habeas corpus petition on the merits, the question of

dismissal is rendered moot.

III. INEFFECTIVE ASSISTANCE OF TRIAL

COUNSEL

The petitioner, in his first three claims for relief, argues

that his trial counsel were ineffective for many reasons.

The clearly established law on the Sixth Amendment was

presented in Strickland v. Washington, 466 U.S. 668 (1984).°

In order to prevail on an ineffective assistance claim, the

petitioner must establish two elements: first, that counsel’s

performance fell below an objective standard of reasonably

effective representation; and second, that the “deficient

performance prejudiced the defense.” Strickland, 466 U.S.

at 687. For the first prong, the petitioner must identify the

acts or Omissions of counsel that are alleged not to have

been the result of reasonable professional judgment. The

court must then determine whether, in light of all the

circumstances, the identified acts or omissions were outside

the wide range of professionally competent assistance.

Strickland, 466 U.S. at 690. On the second prong, the

petitioner must show a “reasonable probability that, but

for counsel’s unprofessional errors the result of the

proceeding would have been different.” Strickland, 466

US. at 694.

° Though the petition contains citations to Wiggins v. Smith, 539

U.S. 510 (2003), this case postdates the Indiana Supreme Court

cases and is ther-fore inapplicable to the analysis at hand.

A.

The petitioner argues that, “delays in_ the

investigations impacted the defense’s ability to prepare and

secure necessary experts”. Petition at 20, docket # 18. The

Indiana Supreme Court addressed this claim in reviewing

the denial of his post-conviction relief petition.

The defendant claims, in part, that his

counsel unreasonably delayed their

investigation. Stevens was tried for murder in

January 1995, within seventeen months of his

arrest in July 1993. Defense counsel entered

their appearances in August 1993. In

November 1993 counsel made their first

request for funding for experts. This request

was granted in May 1994 along with funds for

an investigator. Funding for mitigation

investigation was secured in January 1994, and

a mitigation specialist joined the defense.

Defense counsel periodically requested

additional amounts for the mitigation, fact, and

expert witnesses. Such funding requests were

approved. Billing records indicate _ that

information was being gathered, procedural

issues were being worked out with the

prosecutor and the court, and research was

being done on Iegal issues during the three

months before the first funding request.

Because of successful motions for continuance,

Stevens was not tried until seven months after

the time counsel added the psychologist and

the fact investigator to their team of a paralegal

and mitigation investigator. These facts do not

compel a finding of deficient performance in the

timing of trial counsel’s investigation.

55A

Stevens v. State, 770 N.E. 2d 739, 748 (Ind. 2002) (footnote

and citation omitted). The Indiana Supreme court

reviewed the pre-trial history of this case and examined the

chronological relationship of the events in question.

Despite some initial delays, the court found that the fully

constituted defense team had seven months to prepare for

trial because of counsel’s success in postponing the trial. In

light of the curative effect of the continuances, it was not

an unreasonable application of Strickland for the Indiana

Supreme Court to hold that these investigative delays were

within the range of professionally competent assistance

and that they did not render trial counsel ineffective.

B.

The petitioner argues that, “defense counsel secured

the services of an incompetent expert without making any

effort to familiarize themselves with the potential expert’s

forensic approach” (petition at 22, docket # 18); that “Dr.

Lennon’s ‘specialty’ was not relevant to Christopher

Stevens” (petition at 25, docket # 18); that “Dr. Lennon

was retained under fraudulent circumstances” (petition at

27, docket # 18); and that “defense counsel were aware

that Dr. Lennon’s ‘myth of mental illness’ views were far

outside the professional ‘mainstream.’” (petition at 27,

docket #18). The Indiana Supreme Court addressed these

claims related to expert competence and tnal counsel’s

investigation thereof in the appeal from the denial of his

post-conviction relief petition.

Dr. Lennon had been recommended by the

mitigation investigator. Other members of the

criminal defense community also told Stevens’s

attorneys that Dr. Lennon had done a “very

nice job” in testifying in another death penalty

case. Dr. Lennon holds a Ph.D. in clinical

Psychology from Miami University in Ohio.

S6A

He was a psychology professor at St. Joseph’s

College, where he spent four years as the chair

of the Psychology Department, and was

clinical director of the Child and Adolescent

Psychiatric Center at Humana Hospital in

Indianapolis from 1991 to 1994. Dr. Lennon

conducted a preliminary evaluation of the

defendant prior to April 13, 1994 and met with

him five times from June through December

1994. Dr. Lennon also met with the

defendant’s parents and siblings, and reviewed

school records, records from the Hamilton

Center, and arrest records. Other individuals

from Dr. Lennon’s office, including a social

worker and another psychologist, participated

in evaluations of the defendant. Defense

counsel considered Dr. Lennon a good fit

because of his expertise in treating children and

adolescents, and the defendant’s attorneys

sought and received a transcript of Dr.

Lennon’s testimouy in a case the attorneys felt

had simular issues.

Stevens v. State, 770 N.E. 2d 739, 747-48 (Ind. 2002). It was

not unreasonable for the Indiana Supreme Court to have

found that Dr. Lennon was a competent expert. He

possessed the necessary professional credentials and he

examined and evaluated the defendant. It is widely known

that there is a great range of opinion within the

psychological community. Though the petitioner believes

that he could have obtained a more advantageous expert,

based on these facts, it was not unreasonable for the

Indiana Supreme Court to have found, without regard to

his specialties or his approach to psychology, that he was a

competent expert. Neither was it an unreasonable

application of Strickland for the Indiana Supreme Court to

STA

hold that the degree to which trial counsel familiarized

themselves with Dr. Lennon’s credentials, though certainly

they could have done more, was within the range of

professionally competent assistance.

i.

6

The petitioner presents several arguments about Dr.

Lennon’s report and testimony. Prior to knowing about

Dr. Lennon’s ‘specialty’ or that he fell far outside the

professional mainstream of mental health experts, counsel

guaranteed that Dr. Lennon would generate a report that

would be provided to the State. Petition at 24, docket # 18.

From “out of the blue” Dr. Lennon generated a

completely unauthorized report without consulting

counsel as to the content of that ‘report.’ Petition at 39,

docket # 18 (emphasis in original). Objectively, counsel

should never obtain a report from an expert without

knowing what is going to be in it. Petition at 42, docket #

18. Dr. Lennon devised his own ‘strategy’ that mandated

his unilateral decision to testify at tnal. Petition at 58,

docket # 18. Defense counsel called Dr. Lennon as a

penalty phase witness without knowing about what he

intended to testify. Petition at 59, docket # 18. Dr.

Lennon’s penalty phase testimony, anchored in the

information and opinions served up in the unauthorized

‘report,’ introduced the issue of ‘future dangerousness’ into

the penalty phase. This was highly prejudicial to Mr.

Stevens. Petition at 60, docket # 18. The Indiana Supreme

Court addressed these claims in the appeal from the denial

of his post-conviction relief petition.

The defendant also faults his trial counsel for

providing a copy of Dr. Lennon’s report to the State prior

to trial. We note, however, that the report was provided in

compliance with the trial court’s order that any reports

58A

from experts [were] to be submitted to the State sixty (60)

days in advance of trial. On motion of the defense, the trial

court extended the deadline for the exchange of reports

from experts to July 19, 1994. The defense thereafter supplied

the report.

Stevens v. State, 770 N.E. 2d 739, 748 n.4 (Ind. 2002)

(quotation marks and citations omitted).

Citing Ake v. Oklahoma, 470 U.S. 68 (1985), the

petitioner argues that the Indiana Supreme Court was

unreasonable in finding that trial counsel were not

ineffective for agreeing to provide a copy of the report to

the State. This was not unreasonable because Ake did not

require a confidential psychological report.

We therefore hold that when a defendant

demonstrates to the trial judge that his sanity at

the time of the offense is to be a significant

factor at trial, the State must, at a minimum,

assure the defendant access to a competent

psychiatrist who will conduct an appropriate

examination and _ assist in evaluation,

preparation, and presentation of the defense.

This is not to say, of course, that the indigent

defendant has a constitutional nght to choose a

psychiatrist of his personal liking or to receive

funds to hire his own. Our concern is that the

indigent defendant have access to a competent

psychiatrist for the purpose we have discussed,

and as in the case of the provision of counsel we

leave to the State the decision on how to

implement this nght.

Ake v. Oklahoma, 470 U.S. 68, 83 (1985). It was not an

unreasonable interpretation of Ake for Indiana to require

disclosure of the report. Obviously, if disclosure was

required, then so too was the creation of the report;

S9A

therefore it was not created “out of the blue”. Though it is

self-evident why defense counsel would like the

opportunity to shape and tailor both the psychological

report and Dr. Lennon’s testimony, Ake did not create

such requirements. Indeed, Ake made clear that an

indigent defendant did not have “a constitutional right to

choose a psychiatrist of his personal liking .. ..” Ake, 470

USS. at 83.

D.

The petitioner presents several arguments concerning

intent and the voluntary manslaughter defense versus a

mental illness defense.

By defending this case in accordance with the

views of Dr. Lennon{,] defense counsel

conceded any possible defense that would

question Mr. Stevens’ “intent” during the

commission of the homicide. This was in

spite of the fact that counsel were aware

of facts that impacted upon the question

of the Mr. Stevens’ “intent.”

Petition at 30, docket # 18.

Defense: counsel failed to properly investigate

Petitioner’s substance and alcohol abuse,

failed to develop this evidence, and failed

' to seek or secure the services of an alcohol

and substance abuse expert.

Petition at 35, docket # 18.

In spite of recognizing these shortcomings of

Dr. Lennon, and realizing that the defense

needed additional experts to defend the

case, defense counsels [sic] never sought

additional funding to secure other experts.

60A

Petition at 43, docket # 18 (emphasis in original).

Defense counsels [sic] adopted a theory of

defense that did not focus upon the issue of

Mr. Stevens’ “intent” at the time of the

homicide. The defense of ‘Voluntary

Manslaughter’ was not supported by any

facts as counsel knew them to be or law.

Defense counsel did not know the law.

Petition at 45, docket # 18.

It was unreasonable and prejudicial for defense

counsel to proceed with the untenable

‘voluntary manslaughter’ defense given

that a viable mental illness defense was

available.

Petition at 47, docket # 18.

Petitioner was prejudiced by trial counsel’s use

of the untenable ‘voluntary manslaughter’

defense. Even if counsel had only been able

to secure a ‘guilty but mentally ull’ verdict,

such would have been a circumstance

rendering the death penalty inappropriate.

Petition at 50, docket # 18. The Indiana Supreme Court

addressed these claims at length in its review of the denial

of his post-conviction relief petition.

During the guilt phase trial, the defense

strategy was to urge that the killing was done in

sudden heat and thus, if the defendant were

guilty, he was guilty of voluntary manslaughter

and not murder. At post-conviction, defense

counsel testified that this was one of the

alternative theories they had been considering

from “day one,” and when _ Stevens’s

61A

confession was not suppressed, voluntary

manslaughter became the theory of the case.

Counsel based this theory on a statement in the

defendant’s confession that he “snapped” or

“went off.” Defense counsel tendered an

instruction on voluntary manslaughter, which

the trial court refused to give. During closing

argument, defense counsel nevertheless asked

the jury to return a verdict of voluntary

manslaughter.

While the defendant argues in retrospect

that a mental illness defense would have been

more effective, his proposed avenue was not

without its pitfalls. The post-conviction court

noted that, had defense counsel pursued this

defense, they would have opened the door to

the admission of substantial incriminating

evidence not otherwise presented during the

guilt phase. This evidence included testimony

of a witness that, upon the defendant’s prior

release from jail onto probation for a previous

conviction of child molesting, the defendant

had declared that he planned to kill his next

child molesting victim to avoid returning to

jail. The trial court determined that defense

counsel adequately investigated issues of

substance abuse and mental illness and

reasonably chose to pursue a different strategy.

[FN5] The post-conviction court did not err in

denying relief on this ciaim.

Stevens v. State, 770 N.E. 2d 739, 749 (Ind. 2002) (citations

omitted). In footnote 5, the court stated.

The post-conviction court concluded, in

part: With the benefit of hindsight, Petitioner’s

62A

present counsel suggest that trial counsel

should have adopted the defense of mental

disease or defect (Ind. Code § 35-41-3-6) and

should have presented psychiatric evidence that

Petitioner was unable to form the mens rea

necessary tO commit intentional murder.

However, if Petitioner had raised the insanity

defense, he would have opened the door to the

admission of incriminating evidence that was

not presented during the guilty [sic] phase of

his trial . . .. Moreover, the facts of the crime

itself militate against insanity . . .. Against this

backdrop, Dr. Coons’s testimony that, in his

opinion, Petitioner’s ability to appreciate the

wrongfulness of his conduct was “impaired”

would have had little ~~ no effect on the jury’s

verdict, particularly i: ight of Dr. Coons’s

acknowledgment that Petitioner could

appreciate the wrongfulness of his conduct

when he took steps to hide Zachary’s body.

Stevens v. State, 770 N.E. 2d 739, 749 n.5 (Ind. 2002)

(ellipsis in onginal, citation omitted). Finally, in a section

titled, “Pursuing Voluntary Manslaughter as Defense

Theory”, the court concluded its discussion.

The defendant claims that his trial counsel

were ineffective for pursuing a “fundamentally

flawed” approach to the case by proceeding on

a theory of voluntary manslaughter. They

tendered three proposed instructions that dealt

with voluntary manslaughter, but these were

rejected by the trial court. The defendant

argues that there was no evidence in the record

to support this theory, and that there was

another viable defense available but not used.

63A

The defendant urges that, if defense

counsel had consulted other mental health

experts, counsel would have learned of the

defendant’s dissociative disorder, borderline

personality disorder, chemical dependency, and

LSD impairment at the time of the offense. In

the post-conviction proceedings and in this

appeal, the defendant’s present counsel assert

that the defendant was raped as a child; that at

the time of the killing the defendant switched

- his identity with that of Zachary; that the

defendant killed Zachary because it’s what he

would have wanted in that molestation at age

10, to have been killed by his abuser; and that

the defendant’s ability to appreciate the

wrongfulness of his conduct was disengaged

when he was dissociating. The defendant

argues further that, even if the voluntary

manslaughter defense were regarded as

legitimate strategy, this would not excuse the

failure to present the mental illness defense.

The post-conviction court found that

counsel’s decision to pursue the voluntary

manslaughter strategy, while ultimately

unsuccessful, did not amount to deficient

performance. The court pointed out that any

appreciable evidence of sudden heat justifies an

instruction on voluntary manslaughter, and

that sudden heat is defined as provocation

arising from a variety of emotions. In the

defendant’s admissions of guilt to his brother,

the defendant said that he “clicked” or “went

off’ when Zachary threatened to tell his parents

about the defendant’s sexual conduct. In the

defendant’s confession to police, he stated that

64A

he killed Zachary because he was afraid that

Zachary would report him. Concluding that the

defendant received effective assistance of

counsel as to their strategy to pursue voluntary

manslaughter instructions, the post-conviction

: court found that the defendant’s trial attorneys

pursued the most viable defense available to them.

As to the failure to present a mental illness

defense during the guilt phase, the post-

conviction court noted that, had defense

counsel done so, they would have opened the

door to the admission of _ substantial

incriminating evidence not otherwise presented

during the guilt phase. As we noted above, this

included testimony that, upon the defendant’s

prior release from jail to probation for a

previous conviction of child molesting, the

defendant had declared his intent to kill his next

child molesting victim to avoid returning to jail.

We conclude that the evidence as a whole

does not lead unerringly and unmistakably to a

decision opposite that reached by the post-

conviction court, and we find that defense

counsel’s choice of defense theory did not

constitute ineffective assistance of counsel.

Stevens v. State, 770 N.E. 2d 739, 752-53 (Ind. 2002) ©

(brackets, quotation marks, and citations omitted).

It was not unreasonable for the Indiana Supreme

Court to find that pursuing a mental illness defense was

fraught with pitfalls and would have had little or no effect

on the jury’s verdict. Neither was it an unreasonable

interpretation of Strickland for the Indiana Supreme Court

to have held that trial counsel were not ineffective even

though they pursued a manslaughter defense and did not

65A

pursue a mental illness defense. Though the manslaughter

defense was unsuccessful, fraught with similar pitfalls as

the mental illness defense, and not supported by the

- evidence which was presented at trial; there are simply

some cases for which there is no good defense. See Florida

v. Nixon, _ U.S. ___, 125 S.Ct. 551 (2004).° Trial counsel

cannot be deemed ineffective merely because they drew a

case with horrific facts which lacked a viable legal theory.

EB.

The petitioner argues that “inconsistent state court

rulings regarding Mr. Stevens’ counsels’ [sic] pursuit of a

voluntary manslaughter defense support a finding of

ineffective assistance of counsel.” Petition at 53 (docket #

18). The petitioner argues that it was inconsistent for the

‘Indiana Supreme Court, in his Florida v. Nixon, ___ US.

___, 125 S.Ct. 551, 562 (2004) (quotation marks, brackets,

citations and footnotes omitted.) direct appeal, to have

affirmed the trial court’s refusal to give a voluntary

manslaughter instruction and then to have refused, in his

post-conviction relief petition, to find his trial counsel

ineffective for having pursued the voluntary manslaughter

6s

Defense Counsel’s “concession of Nixon’s guilt does not rank as

a failure to function in any meaningful sense as the Government’s

adversary. Although such a concession in a run-of-the-mine [sic]

trial might present a closer question, the gravity of the potential

sentence in a capital trial and the proceeding’s two-phase

structure vitally affect counsel’s strategic calculus. Attorneys

representing capital defendants face daunting chalienges in

developing trial strategies, not least because the defendant’s guilt

is often clear. Prosecutors are more likely to seek the death

penalty, and to refuse to accept a plea to a life sentence, when the

_evidence is overwhelming and the crime heinous. In such cases,

avoiding execution may be the best and only realistic result

possible.

66A

defense. Procedurally, this argument is unsuccessful

because neither this court nor the Indiana Supreme Court

on post-conviction review, were directly presented with the

question of whether the voluntary manslaughter

instruction should have been presented to the jury. On

post-conviction review, the Indiana Supreme Court stated,

The post-conviction court found that

counsel’s decision to pursue the voluntary

manslaughter strategy, while ultimately

unsuccessful, did not amount to deficient

performance. The court pointed out that any

appreciable evidence of sudden heat justifies an

instruction on voluntary manslaughter, and

that sudden heat is defined as provocation

arising from a variety of emotions. In the

defendant’s admissions of guilt to his brother,

the defendant said that he “clicked” or “went

off’ when Zachary threatened to tell his parents

about the defendant’s sexual conduct. In the

defendant’s confession to police, he stated that

he killed Zachary because he was afraid that

Zachary would report him. Concluding that the

defendant received effective assistance of

counsel as to their strategy to pursue voluntary

manslaughter instructions, the post-conviction

court found that the defendant’s tral attorneys

pursued the most viable defense available to them.

Stevens v. State, 770 N.E. 2d 739, 753 (Ind. 2002) (brackets,

quotation marks, and citations omitted). Based on this

passage, the petitioner appears to conclude that the post-

conviction court believed that the voluntary manslaughter

instruction should have been given to the jury. Perhaps it

did, and perhaps it would have granted the post-conviction

relief petition had that question been squarely presented to

it. Procedurally, that issue is forfeit because it was not

67A

directly raised to either the post-conviction court nor to

this one. Yet before amyone second guesses the post-

conviction strategy, it must be noted that substantively the

language of this passage from the Indiana Supreme Court

does not lead unequivocally to the conclusion that it

believed its prior ruling was in error.

The post-conviction court speaks of “any appreciable

evidence of sudden heat” and it gives two examples of

how trial counsel may have believed that they had such

evidence. It then concludes by saying, not that trial

counscl’s strategy was outstanding, but rather that it was

the best they had. As previously discussed, this case was so

fraught with problems, they did not have much with which

to work. Therefore, though the trial court, the Indiana

Supreme Court on direct appeal, and the prior casclaw all

held that the voluntary manslaughter defense was

inapplicable here, trial counsel’s selection of this

unsuccessful defense and direct appellate counsel’s

inability to convince the Indiana Supreme Court to

broaden the voluntary manslaughter defense did not render

them ineffective.

F.

The petitioner argues that “having introduced

evidence as to their client’s future dangerousness, defense

counsel failed to adequately address the issue of life

without parole.” Petition at 61 (docket # 18). The Indiana

Supreme Court addressed this claim in reviewing the denial of

his post-conviction relief petition. :

The defendant contends that his® tnal

counsel were deficient for failing to tender a

penalty phase instruction that would have

informed the jury of the “true effect” of life

without parole. He argues that such an

instruction was needed to offset the possibility

68A

that a juror might believe that if sentenced to

life without parole, the defendant could be

released early. The defendant argues that such

an explanation should have been provided

because there had been evidence on the issue of

future dangerousness and because his tnal

counsel allegedly provided misguided

speculation dunng jury selection when

responding to a potential juror’s question

concerning the meaning of life without parole.

The post-conviction court’s decision noted

that it is unnecessary to instruct juries on words

that are commonly understood. The court

found that “life without the possibility of

parole” consists of common words that may be

easily understood by persons of average

understanding. It also found that had any such

instruction been tendered it would have been

refused. The post-conviction court concluded

that the defendant had received effective

assistance of counsel as to this claim. We agree

and decline to find ineffective assistance of trial

counsel on this issue.

Stevens v. State, 770 N.E. 2d 739, 755-56 (Ind. 2002)

(citations, footnote and quotation marks omitted).

Citing Simmons v. South Carolina, 512 U.S. 154 (1994),

the petitioner argues that he ‘“‘was denied his right to have

the jury informed of the true effect of one of the sentencing

options.” Petition at 64, docket # 18. In Simmons, the trial

court refused to inform the jury that the defendant would

not be eligible for parole and the United States Supreme

Court held that juries must be so informed when that is a

sentencing option. It was not unreasonable for the Indiana

Supreme Court to have held that the trial court in this case

69A

complied with the requirements of Simmons when the jury

was told that “life without the possibility of parole” was a

sentencing option.

G.

The petitioner presents several arguments related to

the penalty and sentencing phase of his trial.

Counsel’s failure to investigate the abuse,

brutality, and humiliation of Mr. Stevens’

childhood undermined the penalty phase

mitigation presentation.

Petition at 64, docket # 18.

The untapped mitigation evidence that counsel

failed to present during the penalty phase

of trial prejudiced Mr. Stevens.

Petition at 68, docket # 18.

Counsel rendered ineffective assistance when,

during the Penalty Phase arguments the

Defense rejected any explanation for the

offense. |

Petition at 71, docket # 18.

The sentencing phase of the trial was a replay

of the ineffective and prejudicial penalty

- phase.

Petition at 72, docket # 18.

The Indiana Supreme Court addressed these claims in

reviewing the denial of his post-conviction relief petition.

The defendant contends that his tmrial

counsel were deficient during the penalty phase

and sentencing hearing by failing to present

sufficient evidence of mitigating circumstances.

TOA

The defense presented various witnesses. and

evidence showing various mitigating

circumstances including his parents’ divorce

and his living in the homes of different people

while growing up, the defendant’s troubled

childhood including suffering childhood sexual

abuse, his adolescent alcohol and drug use and

diagnoses of passive personality, his depression

and suicide attempts, and his poor academic

performance. The defendant’s post-conviction

counsel, however, assembled several witnesses to

testify regarding information and theories that were

not employed by defense trial counsel.

The defendant first argues that his trial lawyers

unreasonably limited their penalty phase and sentencing

presentations to events of his life that occurred before age

18 and that his counsel unreasonably relied upon Dr.

Lennon, rather than presenting other psychological experts

regarding the defendant’s mental or emotional distress at

the time of the killing. He argues that Dr. Lennon “was a

fatal witness for the defense,” noting that on cross-

examination by the State, Dr. Lennon agreed with the

State’s theory that Zachary’s murder appeared directly

related to the defendant’s fear of having to return to prison,

and the defendant was not susceptible to traditional

psychotherapy and was a serious danger to society. The

defendant further urges that his trial counsel failed to

present a reason for the defendant’s cme. He argues that

counsel should have presented expert evidence that, at the

time of the killing, the defendant was under a mental

disease or defect, with an impaired ability to appreciate the

wrongfulness of his conduct and conform it to the law; that

he was very likely influenced by the interactive use of

drugs; that his disorders were treatable with medication

TIA

and intensive, individual psychotherapy; and that he

would not constitute a pedophilia threat in prison.

The post-conviction court rejected these claims. The

court observed that expert witness opinions suggesting that

the defendant had an impaired ability to appreciate the

wrongfulness of his conduct would have been strongly

contradicted by the extensive evidence of the defendant’s

multiple attempts to kill Zachary and then carefully to take

steps to cover-up the crime. The court noted that even one

of the defendant’s own experts at post-conviction

acknowledged that the defendant could appreciate the

wrongfuiness of his conduct when he took steps to hide

Zachary’s body. The post-conviction court later concluded:

Defense counsel were not ineffective for

failing to investigate and prepare evidence of

organic and mental impairments, including

dissociative disorders, borderline personality

disorders, and the effects of long-term drug use.

Defense counsel’s investigation of Petitioner’s

mental health and prior use of drugs was

reasonable. Both of defendant’s trial counsel

testified that they were aware of Petitioner’s

prior drug abuse. Dr. Lennon was also aware

of Petitioner's pnor drug abuse. However,

Petitioner denied having recently used drugs:

he “used to do drugs, used to dnnk,” but that

he stopped drinking when he got arrested for

child molesting, and “had stopped smoking

marijuana awhile before that, long before that,

‘pretty much cause my sister got killed by a guy

that was high and ever since that I had, I had

gone from doing it heavy to real light and then

stopped.” Moreover addiction counselor

Needham evaluated Petitioner in January 1993

and found that Petitioner did not have a drug

T2A

or alcohol problem. Thus, defense counsel’s

investigation was reasonable.

Moreover, had defense counsel adopted

the strategy of emphasizing Petitioner’s prior

drug use, this would have been inconsistent

with their mitigation strategy of portraying

Petitioner as the passive victim of abuse. As

Dr. Lennon testified, so much of Petitioner’s

behavior could be explained by the abuse, the

neglect that he’s had on top of his genetic

predisposition, and then you look at all the

drugs that he’s been surrounded with his birth

mother, and then the fact that she probably--

even though she denies it, the evidence will

suggest that she probably did do drugs or

alcohol during pregnancy. Had defense counsel

elicited evidence of Petitioner’s prior use of

illicit drugs, he would no longer appear to be a

passive victim molded by outside forces, but

would appear as someone who had actively

decided to break the law. As the Seventh

Circuit explained in Stewart v. Gramley, [w]|hat

is brought out during the penalty phase that

will help a defendant is what goes to show that

he is not as “bad” a person as one might have

thought from the evidence in the guilt phase of

the proceeding. What is brought out that will

hurt him is what goes to show that he is,

indeed, as bad a person, or worse, than one

might have thought from just the evidence

concerning the crime. Defense counsel was not

ineffective for failing to pursue a mitigation

Strategy that could have caused the jury to

think that Petitioner had a more extensive

history of lawbreaking than was.otherwise apparent.

T3A

The post-conviction court thus found that defense

counsel were aware of petitioner’s past drug abuse and

investigated the mental health issues through the use of

Dr. Lennon. Further, the court found that presenting the

petitioner’s chronic drug abuse would cut against the

defense strategy of portraying the petitioner as a passive

victim of abuse rather than someone with an extensive

history of lawbreaking. The court determined that the

Strategic decision to pursue this mitigation strategy over

another was not ineffective assistance of counsel. We are

not persuaded that the evidence in the record unavoidably

points towards an opposite result.

The defendant also contends that defense

counsel was constitutionally ineffective because

of a statement made by counsel during the

penalty phase closing argument: “I am not

going to tell you that anything that happened in

Chris Stevens’s life explains or excuses the

events of July 15th, 1993. It doesn’t, and he

will have to suffer the punishment for that.”

The State responds that this statement was

reasonable because it reminded the jury that

recommending a sentence other than death

would not mean that they were excusing the

defendant for his actions, and would not mean that

the defendant would escape with no punishment.

The challenged statement was in the

context of surrounding argument urging that

the important part of the case before the jury

was not whether the defendant committed the

crime, but rather what penalty to recommend:

a term of years, life impnsonment without

parole, or death--any of which constitute severe

punishment. Counscl’s argument clearly

emphasized the importance of mitigating

74A

circumstances. The challenged statement taken

in context cannot reasonably be understood to

have invited the jury to disregard mitigating

circumstances. We decline to find deficient

performance based on his claims of failure to

present sufficient mitigating evidence during

the penalty phase and sentencing.

Stevens v. State, 770 N.E. 2d 739, 753-55 (Ind. 2002)

(citations, ellipsis, brackets, and quotation marks omitted).

The Indiana Supreme Court extensively reviewed

these claims and it was not an unreasonable application of

Strickland for the Indiana Supreme Court to hold that trial

counsel’s investigation of mitigating evidence and

comments during the penalty phase of trial were within the

range of professionally competent assistance.

H.

20

The petitioner argues that, “the attorney’s dislike of

their client created a conflict of interest that adversely

affected Mr. Stevens.” Petition at 74, docket # 18. The

Indiana Supreme Court, in reviewing the denial of his

post-conviction relief conviction, found that this argument

was procedurally defaulted.

The defendant contends that his two trial

counsel disliked him and that their personal

animosity toward him interfered with their

duty of loyalty to their client, adversely

affecting their representation of him, to his

prejudice. This issue was not designated in the

petition for post-conviction relief and thus may

not be raised on appeal.

TSA

Stevens v. State, 770 N.E. 2d 739, 756 (Ind. 2002). The

petitioner explains 1n his traverse that this is not really an

independent claim, per se, but rather it is no more than an

extension and reiteration of defense counsel’s hiring and

utilization of Dr. Lennon and the resultant prejudice that

enured to Mr. Stevens’ as a result of defense counsels’ [sic]

the [sic] opening the door to the prior misconduct and

future dangerousness. Traverse at 69, docket # 69. To the

extent that this is an independent claim, it is procedurally

defaulted. To the extent that this is an extension and

reiteration of other arguments, it was inherently

addressed by the Indiana Supreme Court and by this

court in conjunction with those other arguments.

A

In his traverse, the petitioner withdrew several of his

claims related to ineffective assistance of counsel. The

following ineffective assistance of counsel subclaims,

which were originally parts of Mr. Stevens’ Third Claim

for Relief in his Petition, are hereby withdrawn as free

standing, independent claims: (1) failure to adequately

address the voluntariness of Mr. Stevens’ confession; (2)

the failure to object to victim impact evidence during the

guilt phase; (3) the failure to present guilt phase witnesses;

(4) LAC resulting in Mr. Stevens’ loss of the nght to testify.

Traverse at 85, docket # 69. Therefore those claims need

not be further addressed in this memorandum.

J.

The petitioner argues that, “counsel failed to request a

second change of venue”’. Petition at 82, docket # 18. The

Indiana Supreme Court addressed this argument in the appeal

from the denial of his post-conviction relief petition.

The defendant contends that he was

prejudiced by his counsel’s_ deficient

76A

performance when they failed to seek a second

change of. venue. Upon motion of defense

counsel, the case was removed from Putnam

County, where the crime was committed, and

venued to Tippecanoe County, two counties

north of Putnam County. The defendant now

argues that both counties are within the

Indianapolis media market, that his counsel

had no strategic reason to keep the case in

Tippecanoe County, and that the failure to seek

a second change of venue prejudiced him by

denying him his right to a trial by an

impartial jury.

The post-conviction court found that

defense counsel were not ineffective for failing

to make a second motion for a change of venue

due to pretrial publicity. The court found that,

given the inherent newsworthiness of the case,

media coverage would have been prevalent

anywhere and although the coverage was at

times extensive it was not necessarily on the

front page as it would have been in Putnam

County. The court also found that Stevens

failed to demonstrate prejudice as the tnal

record showed that every panel of the venire

was carefully questioned about pretnal

publicity by the court, State, and defense

counsel. The evidence does not compel a

decision Opposite that reached by the post-

conviction Court.

Stevens v. State, 770 N.E. 2d 739, 750-51 (Ind. 2002)

(footnote omitted). The _ petitioner's arguments

demonstrate, at most, that jury selection was difficult and

time consuming, not impossible, as a result of the pre-tnal

publicity in Tippecanoe County. The petitioner argues that

TIA

there were numerous prospective jurors who had been

exposed to media reports about the case. To the extent that

jurors with media exposure were seated on the jury, that 1s

a jury selection question, not a question of venue. It was

not unreasonable for the Indiana Supreme Court to have

found that the petitioner was neither prejudiced by nor

denied the effective assistance of counsel because they did

not seek a second change of venue.

K.

The petitioner argues that, “the juror questionnaire

provided no useful guidance” (petition at 84, docket # 18)

and that there was ineffective assistance of counsel “during

voir dire” (petition at 85, docket # 18). The Indiana

Supreme Court addressed these arguments in reviewing

the denial of his post-conviction relief petition.

The defendant challenges his tral counsel’s

performance in jury selection and particularly

as to the jury questionnaires submitted to

prospective jurors.

He argues that his trial counsel used

questionnaires that failed to address mitigation

issues Or to explain the meaning of “life

without parole,” and thus failed to ensure that

prospective jurors understood they could

address future dangerousness with _ this

sentencing option. We first note that the

questionnaire form was not generated by

counsel but prepared by the tnal court and

submitted to counsel for review. Jury

questionnaires are a useful tool employed by

courts to facilitate and expedite sound jury

selection. Their proper purpose is not to

condition or indoctrinate prospective jurors

with the parties’ contentions, notwithstanding

78A

attempts of some counsel to the contrary.

Ineffective assistance of counsel may not be

based upon an alleged failure of counsel to thus

misuse jury questionnaires.

The defendant further alleges that his

counsel were deficient in jury selection by

failing to integrate their mitigation theory into

the voir dire process, and to _ exhaust

peremptory challenges. We have held that it is

permissible to use voir dire to inquire into

jurors’ biases or tendencies to believe or

disbelieve certain things about the particular

line of defense. The record reveals that defense

counsel's voir dire questions extensively

inquired regarding the jurors’ openness to

considering mitigating factors to prevent the

imposition of the death penalty. We decline,

however, to find a criminal defense attorney’s

performance to be deficient for failing to

condition jurors as to the particular mitigation

evidence anticipated in an individual case.

The post-conviction court found that trial

counsel were not ineffective for failing to

exhaust their peremptory challenges. The court

noted that, between the two of them, the

defendant’s trial counsel had spent over fifty

hours reviewing the completed jury

questionnaires. They Challenged nineteen

jurors for cause, seventeen of which were

granted. The court noted that they used

seventeen of their twenty peremptory

challenges, but for strategic reasons did not

exhaust them because what was coming up was

worse. The court also observed that counsel

successfully rehabilitated several jurors that the

T9A

State challenged for cause, forcing the State to

exercise peremptory challenges. The evidence

does not compel a decision opposite that

reached by the post-conviction court.

Stevens v. State, 770 N.E. 2d 739, 751 (ind. 2002) (quotation

marks and citations omitted; emphasis in original).

Both the record, and petitioner’s extensive review of it

in his traverse, demonstrate that trial counsel knew a great

deal about the jury pool. The purpose of the jury

questionnaire and voir dire is to elicit information from

prospective jurors so trial counsel may exercise peremptory

and for cause challenges. While it is certainly possible that

trial counsel could have done a better job with both the

questionnaire and voir dire, their performance was not

ineffective in that they ultimately obtained a great deal of

valuable and insightful information about the

prospective jurors.

The petitioner objects to the Indiana Supreme Court’s

characterization of his argument as a suggestion that the

jury should be conditioned or indoctrinated with the

questionnaire or during voir dire. Nevertheless, the focus

of this argument is more on what should have been

communicated to the jury pool with the questions than

what should have been learned from it by their answers.

Without regard to the questions during voir dire, both the

record and petitioner’s review of it make clear, that the

prospective jurors answers provided a great deal of

information to trial counsel. Because trial counsel obtained

an adequate quantity and detail of information about these

jurors, they were not ineffective for not having asked better

questions and the Indiana Supreme Court was not

unreasonable in finding that trial counsel was not

ineffective during jury selection.

The petitioner argues that,

80A

Due to the appellate ramifications attendant to failure

to exhaust, reasonably competent counsel would have

factored in their belief that their client would be convicted

and the case likely to appeal. Petition at 89, docket # 18.

This is a very odd argument. If the petitioner believed that

one or more jurors were seated which should have been

excused for cause, then he could have argued that his trial

counsel were ineffective for not challenging that juror and

for not preserving that err for appellate review, but that is

not the argument that was presented to the post-conviction

court and that is not the argument that 1s presented here,

even though the traverse states that trial counsel did not

challenge three of the seated jurors for cause. Because the

question of whether any of the jurors should have been

excused for cause was not presented to the post-conviction

court and because it was not included in the petition, this

court will not further address it.

This leaves solely the question of whether counsel was

ineffective for not exhausting their peremptory challenges.

Exhaustion, without a surviving challenge to a seated

juror, does not create an issue for appellate review. That is

to say, the argument “I exhausted all of my peremptory

challenges” is not, standing alone, a legitimate basis for

appeal. The state court addressed this argument by finding

that the failure to exhaust was reasonable for strategic

reasons because the remaining jurors were worse. The

Indiana Supreme Court was not unreasonable in holding

that trial counsel was not ineffective.

L.

The petitioner argues that trial counsel was ineffective

because they “failed to object to the sheriff's decision to

force Mr. Stevens to wear a stun belt . . ..” Petition at 96,

docket # 18. The Indiana Supreme Court addressed this

81A

argument during its review of the denial of his post-

conviction relief petition.

The post-conviction court concluded that

defense counsel were not ineffective for failing

to raise this claim, noting that no evidence was

presented that the defendant was impeded in

his ability to assist his counsel, that no jurors

were aware that Stevens was wearing a stun

belt, and that the belt did not affect Stevens’s

appearance before the jury.

The defendant asserts that while none of

the jurors were aware that he was wearing a

stun belt, their perception of him was still

affected by the fact that he was under restraint.

The defendant argues that he was harmed

because wearing the belt made him appear to

the jurors as emotionally withdrawn, subdued,

and unusually silent, which may have

influenced them to recommend the death

penalty. In the post-conviction proceedings, the

defendant presented the testimony of Dr.

Robert Kaplan who testified that the wearing of

the stun belt at trial would have inhibited the

defendant's expression of emotion.

The testimony of five of his capital trial

jurors and the affidavit of a sixth juror were

also presented. The jurors described the

defendant as emotionally withdrawn, silent,

and subdued. One juror stated that he did not

appear remorseful. Three jurors stated that they

observed the defendant interacting with his

attorneys by passing notes and whispering. The

defendant recognizes that his demeanor and

affect as seen by the jurors dunng tnal was

82A

essentially the same demeanor and affect they had

seen during his videotaped confession.

We conclude that the evidence does not

unmistakably lead to a. result contrary to the

post-conviction court’s factual findings. From

the circumstances presented in this case, we find

no reasonable possibility that but for the failure of

trial counsel to object to the stun belt, the results of

the guilt phase, penalty phase, or sentencing

would have been different.

Stevens v. State, 770 N.E. 2d 739, 757 (Ind. 2002) (footnote

and citations omitted). The petitioner notes that the

Indiana Supreme Court does not cite any United States

Supreme Court cases in deciding the stun belt issue, but

_there are no United States Supreme Court cases on stun

belts. The petitioner cites J/linois v. Allen, 397 U.S. 337

(1970), Holbrook v. Flynn, 475 U.S. 560 (1986), Riggins v.

Nevada, 504 U.S. 127 (1992), Estelle v. Williams, 425 U.S.

501 (1976), and Sell v. United States, 539 U.S. 166 (2003).

The petitioner makes clear that these are cases involving

shackling or medicating a criminal defendant at trial; they

are not stun belt cases. These cases do not constitute

clearly established law as to the question of stun belts.

Though useful as analogies, the decision of the Indiana

Supreme Court that trial counsel was not ineffective in

failing to object to the stun belt was neither contrary to,

nor an unreasonable application of, the clearly established

law as determined by the United States Supreme Court. |

83A

IV. PENALTY PHASE AND SENTENCING ERRORS

The petitioner alleges that various errors occurred

during the penalty and sentencing phases of his trial.

A.

The petitioner argues that there were penalty and

sentencing phase errors because of “reliance upon invalid

aggravating factors.” Petition at 97, docket # 18.

Specifically, the admission of evidence of “unsubstantiated

prior acts of misconduct relating to the killing of one boy

and the molestation of 25-30 others, as well as future

dangerousness .. ..” Petition at 98, docket # 18 (citations

omitted). The Indiana Supreme Court addressed this issue

on direct appeal.

Stevens claims that his right to a reliable

and proportionate sentence was violated when

the State elicited testimony from defense expert

Dr. Lawrence B. Lennon on cross-examination

concerning Stevens’ previous sexual

molestation of an Indianapolis ten-year-old, his

sexual molestations of approximately twenty-

five to thirty other children, his alleged

shooting and killing of another boy “out west,”

and Dr. Lennon’s opinion regarding Stevens’

future dangerousness. Stevens did not object to

this line of questioning.

Defense counsel may riot have objected

because it was so apparent that this testimony

was relevant to countering the mitigating

evidence which Stevens had up to that point

placed before the jury. Stevens “opened the

door” by eliciting testimony from various

witnesses regarding his non-violent and law-

abiding character. The obvious relevance of

84A

this evidence was its tendency to indicate that

Stevens was not normally a violent or

dangerous person, as if the murder of Zachary

Snider had been a one-time, freak occurrence.

The State may properly introduce rebuttal

evidence tending to disprove mitigating

circumstances shown by defendant’s evidence.

This issue is waived.

Stevens v. State, 691 N.E. 2d 412, 435 (Ind. 1997) (citations,

footnote, and quotation marks omitted). The Indiana

Supreme Court was not unreasonable in finding that this

evidence was legitimately admitted as rebuttal evidence.

The petitioner also argues that the tnal judge relied “upon

invalid aggravating factors.” Petition at 97, docket # 18.

The judge’s sentencing statements

addresses and accords weight to factors of

commission of the crime in a “calculated”

manner, “coolly performed with deliberation,”

“cold-blooded manner,” of a crime in a “sexual

gratification”, becoming “sexually excited after

commission of the murder,” each of which the

court considered as aggravators and added

weight to the death side of the scale, none of

are among the listed aggravating factors in

Indiana Code § 35-50-2-9, a number of which

are actually synonymous with “intentional,”

which had already been found and weighed.

Petition at 105, docket # 18. The Indiana Supreme Court

also addressed this issue on direct appeal.

Third, Stevens claims that the trial court

improperly considered non-statutory

aggravators as part of its sentencing

85A

determination in violation of Bivins v. State, 642

N.E. 2d 928, 955-56 (Ind. 1994).

The sentencing statement begins by setting

forth facts supporting the charged aggravators,

finding each proven beyond a reasonable

doubt. The statement then discusses the

mitigating evidence and finds Stevens’ troubled

childhood and confession to be mitigating

circumstances proven by a preponderance of

the evidence. The statement then weighs the

aggravating and mitigating circumstances and

concludes not only that “the mitigating

circumstances are far outweighed by the three

aggravating circumstances,” but that “the

mitigating circumstances are outweighed by the

[victim’s age] alone.” The statement then

indicates the court’s consideration of the jury’s

unanimous recommendation for death, placing

“significant weight upon the — jury’s

recommendation.” The court then states, The

Court having made a separate, independent

assessment of the facts of this case, having

balanced the aggravating circumstances and the

mitigating circumstances, and having found

that the mitigating circumstances are not

outweighed by the aggravating circumstances,

the Court now finds that the death penalty is

the appropriate punishment for the defendant,

Christopher M. Stevens, and for this crime.

Stevens specifically refers to the following,

which concludes the court’s sentencing

statement: In addition to the _ evidence

previously discussed, the Court finds this

murder was calculated. It was motivated by

self-preservation, coolly performed with

86A

deliberation, and coupled with the defendant’s

sexual gratification. The defendant placed the

possibility of his arrest for child molesting

above the life of a ten year old boy. He stated

that if placed in this position he would kill in

order to avoid returning to jail. That is exactly

what he did. He clearly acted in a cold-blooded

manner. After his first attempt to suffocate

Zachary was unsuccessful, he acted

intentionally and deliberately a second and

third time before successfully obtaining his goal

of permanently silencing the child. Imposition

of the death penalty in this case is

proportionate to the nature of the offense and

appropriate for the defendant, Christopher M.

Stevens, and the death penalty is therefore

imposed upon Christopher M. Stevens.

Even if the facts articulated in the judge’s

surplus statement indicate some influence on

his decision, they appear mostly to be

restatements of facts which would fall within

the charged aggravating factors. Stevens

himself states, Such terms as “calculated”,

“coolly performed with deliberation”, and

“cold-blooded manner” are no more than

synonyms for the culpability element of the

(b)(1) aggravator, “intentionally”. Ind. Code §

35-50-2-9(b)(1). Likewise, the reference to

“sexual gratification” as a reason for sentencing

Stevens to death duplicates the underlying felony

he found in this aggravator, child molesting.

The molestation and intentional murder of

a ten-year-old child by one on probation,

especially probation for a previous child

molesting conviction, exemplifies a cnme and

87A

criminal particularly worthy of the severest of

penalties. While his confession and troubled

childhood were mitigating circumstances

properly found present, we agree with the trial

court’s determination that these weighed far

less than the aggravating circumstances. After

reviewing the sentencing process and facts

supporting the tnal court’s decision, we

determine that the death penalty is appropriate

under the code and the constitutions and adequately

reflects the nature of the offense and offender.

Stevens v. State, 691 N.E. 2d 412, 436-37 (Ind. 1997)

(citations and subsequent history omitted). The trial judge

did not apply invalid aggravating factors. After having

made the requisite findings, he expressed a reasoned and

factually supported personal opinion; nothing more.

Indeed, the Indiana Supreme Court expressed the same

opinion. Doing so was not error and the Indiana Supreme

Court was eminently reasonable and correct in its ruling.

B.

The petitioner argues that,

Because the charged aggravating

circumstances were not proven beyond a

reasonable doubt, the jury was not

appropriately instructed with regard to matters

related to the aggravators and the court double

counted the (b)(1) and the (b)(11) aggravating

circumstances, Mr. Stevens’ penalty phase and

sentence were unreliable.

Petition at 106, docket # 18. The Indiana Supreme Court

addressed these three arguments on direct appeal. In

addressing the argument. that the aggravating

88A

circumstances were not proven beyond a reasonable doubt,

the court stated:

Stevens's death sentence was based, in part, on

Zachary Snider being under the age of twelve when

murdered. Stevens argues that this aggravator must be

understood to require the defendant’s actual knowledge of

the child’s age when he committed the murder, and that

insufficient evidence existed to show that on July 15, 1993,

he knew Zachary was under twelve.

While acknowledging that this question has never

been presented to this Court, Stevens argues that our

holding in Castor v. State should control. In Castor the

evidence at trial showed that the defendant might have

believed the plain-clothed officers who surrounded him in

unmarked cars to be mafia “hit men” when he opened fire

and killed one of them. The trial court had instructed the

jury according to our previous decision in Moore v. State

which stated that the (b)(6) aggravator applies if a

defendant “knew or should have known” the victim was a

law enforcement officer. Without specifically stating that it

was overruling Moore, a bare majority of this Court

determined that the aggravator required “actual

knowledge” on the part of the defendant, rather the lesser

“should have known” standard, and reversed and

remanded for a new penalty phase trial and sentencing.

The Castor majority said that the deterrence rationale

underlying the aggravator justified the holding:

The policy at the base of the exercise of the

police power here is to create a_ special

deterrence to the direction of physical force

against those upon whom the security of the

community depends.

We believe that the societal rationale for

imposing death for one who kills a law

89A

enforcement official is promoted only if the

defendant knew that the victim was a law

enforcement official at the time of the killing.

There was necessarily more than deterrence, however,

supporting the Castor decision. The “knew or should have

known” standard of Moore would deter more law

enforcement officer murders because it would cause the

hypothetical “rational murderer” to pause before killing

someone who plausibly might be a law enforcement

officer. The Castor “actual knowledge” standard, on the

other hand, allows the “rational murderer” to err on the

side of killing if he has any reason to question the status of

his victim. Thus, rather than the articulated “deterrence”

rationale, what appears to be the actual justification behind

Castors holding is the notion of moral culpability. This

follows because the holding makes sense only if one views

a defendant who knowingly murders a police officer or

other public servant as more deserving of harsher

punishment than one who does not know his intended

victim is a police officer. If such a mens rea makes the

“cop-killer” more culpable, then logically the aggravator

should not apply unless the defendant actually knew it was

a police officer at whom he shot.

When one sees the retributive reality behind Castor’s

“deterrence” language, the case before us is_ easily

distinguished. Whereas a defendant may reduce his

culpability by showing that he mistook a plain-clothed

police officer victim for an average citizen, a defendant

will never be able to reduce his culpability by claiming that

he reasonably thought his eleven-year-old victim was

actually twelve. The legislature has chosen an age-based

bright line, rather than a more subjective standard such as

“The victim was a young child,” presumably to avoid both

the vagueness and litigatory problems the less specific

language would create. Such a decision was not

90A

unreasonable, as twelve is a rational line of demarcation

between pre-pubescence and adolescence. Because there is

no moral culpability rationale for distinguishing between

the murderer of an eleven-year-old child and the murderer

of a twelve-year-old child, as there is between “law

enforcement officer” and “civilian,” the actual knowledge

standard of Castor is unnecessary for cases involving the

victim’s age aggravator. Moreover, by applying the

victim’s age aggravator regardless of the defendant's

awareness of his child-victim’s age, such murders will be

further deterred because their perpetrators will have to be

absolutely certain that their victim is twelve or older, or

suffer the consequences.

Accordingly, we hold that when the (b)(! 1) aggravator

is charged, all the State need show beyond a reasonable

doubt is what the code states: that the victim was less than

twelve (12) years of age. Such a rule reflects the

legislature’s policies of both increased protection of young

children and harsher punishment for those who prey upon

them. As we stated in Barger v. State:

For most of this century, the legislature has

enacted and reaffirmed a consistent public

policy aimed at punishing offenders more

harshly when the offenders commit crimes

against younger children. Younger

children are more in need of protection;

they are less likely to be able to defend

themselves and are more susceptible to

adult suggestion and schemes.

Stevens v. State, 691 N.E. 2d 412, 431-33 (Ind. 1997)

(citations, footnote, quotation marks, brackets, ellipsis, and

subsequent history omitted; emphasis in original). Though

the Indiana Supreme Court also addressed the proof of

other aggravating circumstances, the petition does not

9IA

appear to raise any of those other issues here.

Nevertheless, the Indiana Supreme Court was not

unreasonable in its resolution of all of the petitioner’s

arguments related to the adequacy of the proof of the

aggravating circumstances.

In addressing the argument that the jury

was not appropriately instructed with regard to

matters related to the aggravators, the court

stated: Stevens’s death sentence is based in part

upon the finding that Stevens killed Zachary

Snider while committing the crime of child

molesting, Ind. Code Ann. § 35-50-2-9(b)(1)(C)

(West Supp.1997). Stevens claims that his due

process nights were violated because the jury

was not instructed on the presumption of

innocence and the requirements of proof

beyond a reasonable doubt as to each essential

element of the crime of child molesting.

Therefore, Stevens argues, the trial court erred

when such instructions were not given during

the sentencing phase of his trial. Stevens did

not make any objection to the instructions

which were allegedly lacking, nor did he tender

any of his own.

Such failures result in a waiver of the issue on appeal.

Stevens v. State, 691 N.E. 2d 412, 431 (Ind. 1997)

(quotation marks and citation omitted). Though

procedurally defaulted, this argument is also substantively

meritless. The petitioner’s confessions support this

aggravating circumstance and as previously discussed,

uncorroborated testimony is not inherently unreliable.

In addressing the argument that the court double

counted the (b)(1) and the (b)(11) aggravating

92A

circumstances, the Indiana Supreme Court on direct

appeal stated:

Stevens claims that his right to a reliable

and proportional sentencing determination was

violated when the jury and court considered

both the (b)(1)(C) (intentional killing while

committing child molesting) and the (b)(11)

(victim less than twelve years of age)

aggravators as part of their sentencing

determination. His argument arises from the

fact that at the time of his sentencing hearing,

the crime of child molesting was defined as

performing or submitting to sexual intercourse

or deviate sexual conduct with a child under

twelve years of age. Because the (b)(11)

aggravator was necessarily proven once the

(b)\(1)((C) aggravator was proven, Stevens

claims that this overlapping impermissibly

skewed the balance between aggravators and

mitigators against him and undermined the

reliability of the sentencing determination.

Stevens cites several cases from other

jurisdictions which allegedly support his

position. The majority of these cases address

death sentences predicated upon murder for

pecuniary gain and murder during the course of

robbery aggravating circumstances. The

rationale behind these cases is best summarized

by State v. Jenkins, 473 N.E. 2d 264, 293-297

({Ohio] 1984) (overlap of murder-to-avoid-

apprehension aggravator with murder-while-in-

the-course-of-aggravated-robbery aggravator,

and the latter with murder-in-the-course-of-

kidnaping aggravator), which found that

overlapping aggravators unfairly increase the

93A

likelihood of a death sentence by inflating the

weighing process in favor of the prosecution.

Other jurisdictions have rejected this

reasoning. In holding that the two aggravating

factors should not be merged as one, the

Supreme Court of North Carolina noted that

the felony-murder aggravator and _ the

pecuniary gain aggravators examine different

aspects of the same crime, thus deserving

separate consideration. The Wyoming

Supreme Court noted, furthermore, that the

rule of merger enunciated by the other cases is

premised upon an assumption that the number

of aggravating circumstances has some

independent significance. In Wyoming, the

analysis of the defendant’s conduct is

qualitative, and the jury is not permitted to

base its determination upon the quantitative

weighing of aggravating circumstances.

The analyses from North Carolina and

Wyoming are persuasive. As in -Oliver, the

aggravating circumstances at issue here address

different policies, even though the age of the

victim is an overlapping factor in both. The

felony-murder aggravator focuses on _ the

defendant’s character, finding highly culpable

the fact that the mind of the accused has in the

same criminal episode formulated and held the

intent to kill and the intent to commit one of

the enumerated felonies. The age of the victim

aggravator, by contrast, focuses on the status of

the victim, arising from the need to give

heightened protection to younger children and

to punish more severely those who harm them.

As in Engberg, our death penalty statute

94A

involves the weighing, rather than the

counting, of aggravating factors. Although

Stevens’ jurors were not instructed as clearly on

this point as were the jurors in Engberg, they

were told repeatedly that they could only

recommend the death or life without parole if

they found the mitigating circumstances, if.any,

“outweighed” (and not “outnumbered”) by the

aggravating circumstance(s) alleged.

We find no reason to believe that the total

aggravating weight given to Zachary’s age by

the jury would necessarily increase simply

because it is mentioned in more than one

factor. As the Wyoming Supreme Court said,

The sentencing authorities’ balancing of

aggravating and mitigating circumstances

which the Flonda court previously had said is

never a simple summing of aggravating

circumstances, was not disturbed by the separate

articulations of what is a single aspect although

having separately identifiable characteristics.

Stevens v. State, 691 N.E. 2d 412, 433-34 (Ind. 1997)

(footnotes, quotation marks, citations, parallel citations,

and ellipsis omitted). As the petitioner repeatedly points

out, Indiana is a weighing state and therefore the Indiana

Supreme Court was not unreasonable in dismissing this

inapplicable, counting-based argument.

C.

The petitioner argues that, ‘the jury was not instructed

on standards for determining the appropriateness of death

or life without parole.” Petition at 108, docket # 18.

The Indiana Supreme Court addressed this argument

on direct appeal.

95A

In Zant v. Stephens, 462 U.S. 862, the

Court said: A fair statement of the

consensus expressed by the Court in

Furman is that where discretion is

afforded a sentencing body on a matter so

grave as the determination of whether a

human life should be taken or spared,

that discretion must be suitably directed

and limited so as to minimize the risk of

wholly arbitrary and capricious action.

The respondent in that case argued that this mandate

in Furman was violated by a scheme that permits the

jury to exercise unbridled discretion in determining

whether the death penalty should be imposed after it

‘has found that the defendant is a member of the class

made eligible for that penalty by statute. The Court

dismissed this argument, however, because it could

not be accepted without overruling the specific holding

in Gregg. The Court stated:

The approval of Georgia’s capital

sentencing procedure rested primarily on

two features of the scheme: that the jury

was required to find at least one valid

Statutory aggravating circumstance and to

identify it in writing, and that the State

Supreme Court reviewed the record of every

death penalty proceeding to determine

whether the sentence was arbitrary or

disproportionate. These elements, the

opinion concluded, adequately protected

against the wanton and freakish imposition

of the death penalty.

Similarly, allowing an Indiana tnal judge,

once the class of death-eligible murderers is

96A

narrowed through the balancing of aggravating

and mitigating circumstances, the authority to

decide with a jury’s advice between life without

parole and death is not constitutionally

impermissible. Assessing slightly different

arguments, we reach the same conclusion

today in Wmnnkles v. State, 690 N.E. 2d 1156

(Ind.1997). This Court still automatically

reviews the appropriateness of all death

sentences. Moreover, our system, even with its

life without

This text is long and has been trimmed here. Open the source document for the complete record.